REASONS FOR JUDGMENT
1 I have before me a Notice of Motion, filed on 4 November 2010, by the first and second applicants in proceeding VID 175 of 2010 in the docket of Gray J. That Notice of Motion foreshadows applications for the following relief:
1. Order to grant leave to appeal, orders dated 22 October 2010 by Gray J;
2. If required, order to extend the time to file a Notice of Motion to grant leave to appeal;
3. Order that Orders 4 and 7 dated 22 October 2010 be stayed until the appeal process is complete;
4. Any other order the Honourable Court deems fit.
Although the Notice of Motion relates to all of the orders made by Gray J on 22 October 2010, the first applicant in the proceeding before his Honour, who represented himself on the motion before me today, made it clear that he and the second applicant, who is his wife, desire leave to appeal only with respect to Orders 4, 6 and 7. My reasons will be concerned with those orders.
2 On 22 October 2010, Gray J made seven orders in the proceeding before him, including the following:
4. Unless within 14 days the first and second applicants provide security for the respondent's costs of the proceeding in the sum of $40,000, in a form to the satisfaction of the registrar, the proceeding be dismissed with costs.
6. The motion, the subject of the applicants' Notice of Motion filed on 15 October 2010 be dismissed.
7. The first and second applicants pay the respondent's cost of the Notice of Motion filed on 15 September 2010 and the Notice of Motion filed on 15 October 2010, including the costs reserved on 21 September 2010 and the costs of today.
Earlier today I disposed of the first and second applicant's motion for leave to appeal from order 6, for reasons which I then gave. Save to the extent necessary to formalise that disposition by the making of orders, I do not propose to revisit that matter.
3 There is a preliminary difficulty which the first and second applicants need to overcome with respect to their Notice of Motion of 4 November 2010. Pursuant to O 52 r 10 (2A)(b) of the Federal Court Rules, the notice ought to have been filed within seven days after the date upon which Gray J pronounced his judgment. As will be clear, that would have required the notice to have been filed on or before 29 October 2010. The first and second applicants have sought an extension of time such as would permit them to file their Notice of Motion no later than 4 November 2010, which was the date upon which they did so.
4 I have a discretion under O 52 r 10(2A) to allow further time within which to file a Notice of Motion for leave to appeal from a judgment of the court. Counsel for the respondent, very properly in my view, raised no substantial resistance to the suggestion that an appropriate extension should be allowed. Gray J's reasons were given ex tempore on 22 October 2010, and his orders were pronounced from the bench without being published in written form on that day. The first applicant has told me that it was only on 1 November 2010 that he obtained a typed copy of his Honour's orders, and counsel for the respondent was not heard to suggest that the first applicant was not accurately representing the circumstances in which he and his wife found themselves. I shall, therefore, allow the extension of time sought by the first and second applicants.
5 As is apparent from the nature of the orders made by Gray J, the substantial controversy before me today relates to so much of those orders as required the first and second applicants to give security in the sum of $40,000 for the costs of the respondent, failing which the proceeding would stand dismissed.
6 The nature of the claims of the first and second applicants in the proceeding before Gray J may be broadly stated as follows. It seems that the third applicant, which is a company in liquidation no longer playing any part in this proceeding, was owned and controlled by the first and second applicants. It appears to have been the corporate vehicle through which they carried on a business of some kind, and it sought and obtained a loan from Westpac Bank. As security for that loan, the second applicant, who is the registered proprietor of the house in which the first and second applicants lived, gave a mortgage over that property to the bank. In due course the third applicant defaulted on the terms of the loan from the bank. The bank exercised its rights under the mortgage and the house was sold.
7 The present proceeding is not against the bank, but is against a company which provided a valuation to the bank for the purposes of the loan obtained by the third applicant. In broad terms, the applicants say that the valuation was for less than the house was worth, which had the consequence, as I understand it, that less money than the company might otherwise have received on loan was advanced by the bank. This had the further consequence that the company was then less able to trade viably, and, ultimately, went into liquidation. It seems to be the first and second applicants' case that, had the valuation been what they now say is an appropriate one, more money would have been lent to their company, that the company would have survived, and that the house in which they lived would never have been sold.
8 The jurisprudential nature of the claims arising out of these allegations was not altogether clear before Gray J, and I am not satisfied that it is yet entirely clear. However, with the assistance of a member of the Victorian Bar, who provided his services pro bono, the first and second applicants managed to file a Statement of Claim which articulated two separate legal bases for the case which they desired to run. As Gray J pointed out in para 8 of his reasons of 22 October 2010, the first was that the respondent misled and deceived the bank, and that this amounted to unlawful conduct under s 52 of the Trade Practices Act 1974 (Cth). The second was an alternative claim, and was said to involve what his Honour described as a fraudulent conspiracy, in which the respondent effectively danced to the tune of the bank and provided, at the behest of the bank, a depressed valuation for the second applicant's house.
9 In the proceeding before his Honour, the respondent sought to strike out the applicants' Statement of Claim, but his Honour was not prepared to take that drastic step. In this regard, his Honour said (at [9]):
The motion to strike out the Statement of Claim appears to me to be one that I ought not to consider in detail. I would not be in a position to say that the allegations were such that none of the applicants could ever succeed on any of them.
If it were the case that the Statement of Claim were to be struck out, it would be necessary to permit the applicants to have a further opportunity to attempt to replead their claim. I note without further comment that the respondent's motion was not one for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth).
10 In the hearing of the motion now before the court, the first applicant disclaimed any intention to allege that the respondent had misled the bank with respect to the valuation of the second applicant's house. This led to a submission on behalf of the respondent that the first and second applicants had now, in effect, jettisoned the statutory basis of their claims in this court and, therefore, that there was nothing left over which the court had jurisdiction. As I indicated to counsel for the respondent at the time, I do not accept the jurisprudential basis of this submission. It may well be that the applicants ultimately amend their claim, and place no reliance upon their original statutory cause of action. But, as I understand it, the law is that once a proceeding is legitimately commenced in the court in which jurisdiction is invoked with respect to a matter arising under a law made by the Parliament, the court retains jurisdiction to deal with that matter however the legal basis of the controversy may be defined. I would also be reluctant to depart on this motion from the basis of the case which was conducted below. Gray J dealt with the motion for security before him upon the footing that he was regularly exercising a jurisdiction which the court had, and I would be disposed not to depart from that assumption.
11 The respondent applied for security substantially on the ground that the first and second applicants could not satisfy an order as to costs which might be made against them and in favour of the respondent. That ground was clearly established. It has not been suggested on the present motion that the applicants would be in a position to satisfy a costs order made against them, if that should be the outcome of the case before the docket Judge. The first applicant proposed that this conclusion effectively carried the corollary that he and the second applicant must now be in no position to provide security, and that the security ordered by Gray J would necessarily have the effect that their case would be dismissed in accordance with the selfexecuting nature of that order. Counsel for the respondent, quite appropriately in my view, accepted that that would follow. I proceed, therefore, upon the basis not only that the first and second applicants could not satisfy an order for costs which might be made against them, but also that if his Honour's Order 4 remained in place, they would be unable to continue their case against the respondent.
12 As pointed out by counsel for the respondent today, Gray J adverted to five circumstances by reference to which his discretion to order security should be exercised. They were:
1. the first and second applicants' lack of any ability to pay the respondent's costs if an order to that effect were ultimately made;
2. the first and second applicants' status as natural persons rather than as corporations;
3. the first and second applicants' allegation that their impecunious circumstances were brought about by the respondent, an allegation which his Honour described as a weak one;
4. the circumstance that the first and second applicants were, in substance no less than form, the moving parties in the litigation and not merely defending themselves; and
5. the weakness of the first and second applicants' case generally on the merits and their poor prospects of success.
13 Of the above circumstances, the first, as I have already indicated, was and remains uncontroversial. Nothing said by the first applicant today has persuaded me that there is any doubt as to the way his Honour characterised the third and fourth circumstances or as to the accuracy of the propositions contained in them. The second and fifth circumstances identified by his Honour are, however, of more concern. As to the second, his Honour said (at [11]):
A powerful factor in any application for security for costs is whether the applicants who are being asked to provide security are natural persons or corporations. Courts are reluctant to shut out natural persons from their access to the Court by means of orders that they provide security for costs. This is contrast with corporations which, whilst they are often worth nothing, often have natural persons standing behind them who might be well able to provide security to safeguard a respondent if an application should fail. There is no universal rule, however, that a natural person should not be the subject of an order for security for costs. It should also be pointed out that there is no affidavit evidence from the applicants that the first and second applicant would be shut out entirely if an order for security for costs were made. It may well be that they have some sympathetic person able to provide them with sufficient funds to put up the security for costs in order to enable them to proceed with their claim. If I order security for costs, and that occurs, the respondent will have the comfort of security, if it should be successful in the proceeding.
I should mention at this stage that the final three sentences in this passage were, in effect, qualified by the indication by counsel for the respondent to which I have already referred, namely, that it is accepted that the first and second applicants would indeed be shut out entirely from their case if the order made by his Honour were to stand. It is the earlier part of the above passage with which the remainder of these reasons is relevantly concerned.
14 The jurisdiction to award security for costs arises under s 56(1) of the Federal Court Act, which is as follows:
The Court or a Judge may order an applicant in a proceeding in the Court … to give security for the payment of costs that may be awarded against him or her.
The matter is also the subject of O 28 r 3(1) of the Federal Court Rules, but that provision deals with specific considerations that might be relevant in particular fact situations, and it has been made clear in the authorities that it is not limiting apropos the exercise of the broad discretion which arises under s 56 of the Federal Court Act. It is the relationship between the board terms of s 56 and some of the principles that have been articulated in the cases over the years that has, in my mind at least, come to occupy a central position with respect to the applicants' present motion for leave to appeal.
15 Over many years the court has referred to the approach which ought to be taken when security for costs is sought against a natural person. It is not necessary to go further back than the judgment of Morling J in Barton v Minister for Foreign Affairs (1984) 2 FCR 463 at 469 where his Honour said:
It has never been the case that impecuniosity on the part of a plaintiff is a ground for ordering him to give security for costs. In Pearson v Naydler [1977] 1 W.L.R 899, Megarry V-C said:
The basic rule that a natural person who sues will not be ordered to give security for costs however poor he is, is ancient and well established. As Bowen L.J. said in Cowell v Taylor (1885) 31 Ch. D. 34 at 38, both at law and in equity 'the general rule is that poverty is no bar to a litigant'. The power to require security for costs ought not to be used so as to bar even the poorest man from the courts.
16 Then in James v Australia and New Zealand Banking Group Limited (1985) 9 FCR 442 at 445, Toohey J said:
All the applicants other than the Yallambee Pty Ltd are natural persons. So far as they are concerned the law is clear.
His Honour then set out the same passage from Pearson v Naydler as had been referred to by Morling J in Barton.
17 In Melville v Craig Nowlan & Associates Pty Ltd (2001) 54 NSWLR 82, Hayden JA dealt at some length with the jurisprudence in this court with respect to security for costs. If I may so observe, with respect, his Honour appeared to discern a certain tension between what seemed to be a reasonably consistent reference to the general principle which I have mentioned and the broad terms of s 56 of the Federal Court Act under which the relevant discretion will always fall to be exercised. His Honour said (at 105, [92]):
The dicta of the various judges of the Federal Court noted above do not conform with the views stated by S Colbran, Security for Costs (1993) Melbourne, Longman Professional. In par 5.40, he said: "Perhaps the only true limitation on s 56 is that it must be exercised judicially." At par 5.41 he said: "The Federal Court's jurisdiction is open-ended and arguably would enable an insolvent individual to be ordered to pay security for costs". However, these views are not linked to any analysis of the dicta in question.
As I read Hayden JA, what his Honour was saying at this point was that the view expressed by the text writer that the jurisdiction under s 56 was openended was not consistent with the flow of authorities in the court itself. Having referred to a number of the common law cases, including Cowell v Taylor and Pearson v Naydler, Hayden JA said (at 109, [101]):
By "basic rule" Sir Robert Megarry V-C meant, and by "general rule" Bowen LJ meant, that the rule is a strict one, though it is subject to specific exceptions (eg, in relation to appeals, and nominal plaintiffs). They did not mean that generally insolvent plaintiffs will not be ordered to provide security, unless in the specific circumstances of a particular case a court thinks it just to make the order. As Baggalley LJ said in Cowell v Taylor (at 37): "the rule is that anyone may sue without giving security in any but certain excepted cases". While it is possible that the "rule" is less absolute than these formulations would suggest and while there may be room for debate about the true nature of the rule, … whatever the scope of the rule, the claimant contends that it has not been abolished by s 69(3). In considering that submission, it is convenient to assume that the rule is an absolute rule, and that it is a rule of fundamental importance.
The s 69(3) to which Hayden JA referred was s 69(3) of the Land and Environment Court Act 1979 (Cth) under which the discretion to order the giving of security for costs was vested in the Land and Environment Court from which the appeal being considered by his Honour and his colleagues arose. His Honour went on to identify the particular nature of the jurisdiction arising under that Act, specifically with reference to the public interest nature of proceedings and the fact that proceedings could be brought by any person. It was these circumstances, as I read his Honour's judgment, which set the case apart from those purely party and party instances of litigation in the context of which the common law rule arose. If that should be a relevant point of discrimination, I am bound to observe that in the present case the applicants are making a claim which is specific to themselves, one which, both under the general law and under s 82 of the Trade Practices Act, would be linked to damages which they personally had suffered.
18 Coming forward to 2002, in Tait v Bindal People [2002] FCA 322, Spender J said (at [27]):
The position in relation to security for costs in the present matter is governed by section 56 of the Federal Court of Australia Act 1976 (Cth). Section 56 provides that security is to be of such amount and given at such time and in such manner and form as the Court or a Judge directs. As to whether security costs for costs should be ordered, Cowell v Taylor (1885) 31 Ch D 34 at 38, a case of more than 100 years ago, sets out the fundamental principle.
His Honour then mentioned the general rule identified in Cowell v Taylor to which I have referred above. His Honour was specifically concerned with the question whether that rule applied in appellate proceedings where the presumptively unsuccessful object of an order for security had already had the benefit of a hearing before a court or tribunal. Such cases aside, it seems clear that Spender J was of the view that the general rule referred to in Cowell v Taylor should be regarded as a fundamental principle.
19 A number of the authorities were collected by Lindgren J in Knight v Beyond Properties Proprietary Limited [2005] FCA 764. His Honour listed the instances in which the courts had declined to order that security be given by natural persons. He said (at [32]):
Many cases can be cited for the proposition that there is a disinclination to order an applicant who is a natural person to provide security, at least, in the absence of some factor in addition to impecuniosity.
What is important in the present case is the following paragraph of Lindgren J's reasons in which he adverted to the kind of circumstances in which security had been ordered against natural persons. His Honour said (at [33]):
In the cases in which natural persons have been ordered to provide security, some factor in addition to impecuniosity has been present; cf Barton v Minister for Foreign Affairs (1984) 2 FCR 463 (Morling J) at 594 (impecuniosity and residence outside Australia); Cunningham v Olliver (unreported, Burchett J, 21 November 1994) (but for delay, security would have been ordered on ground of impecuniosity and bringing of claim to a significant extent for benefit of others); Chang v Comcare Australia [1999] FCA 1677 (Moore J) at [32] (impecuniosity and lack of prospects of success); Loque v Hansen Technologies Ltd [2003] FCA 81 (Weinberg J) (impecuniosity and residence outside Australia); Morris v Hanley [2000] NSWSC 957 (Young J) at [21], [38] and [39] (but for delay, Young J would have ordered security on grounds of impecuniosity and lack of prospects of success and large costs involved to defendants. Young J's decision was reversed on appeal on the ground that defendants had not adequately explained their delay in moving for security, but the Court of Appeal did not consider other aspects of his Honour's reasons: see Morris v Hanley & Ors [2001] NSWCA 374 at [30]-[31]); Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82 (CA) at [132] (per Heydon JA) (impecuniosity and applicant's failure to show that order would stultify proceeding and sum ordered by primary Judge not oppressive).
20 Of those instances to which Lindgren J referred, it may be noted that one of them, Chang v Comcare, involved an example of a case in which security had been ordered on the ground of impecuniosity and lack of prospects of success. I should, however, refer to the relevant paragraph ([32]) in the reasons of Moore J in that case:
Order 53 r 8 is in terms that makes it clear that it is only in exceptional cases that security for costs should be ordered. The circumstances must be "special circumstances". Thus there is a clear bias in the rule against ordering security. Accordingly, authorities to which reference has been made to this point concerning the ordering of security have to be approached with this in mind. However the present case is one where, in my opinion, Mr Chang has limited prospects of success, the respondents will be unable to recover their costs if they succeed and Mr Chang has obtained the benefit of the decision which he now seeks to impugn. In addition he has not satisfied an earlier liability to pay pursuant to orders made by this Court. I am satisfied that special circumstances exist which warrant an order for security for costs.
Order 53 r 8 to which Moore J referred is concerned only with appeals to this court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), and nothing further needs to be said about that aspect of his Honour's reasons. However, I note that, in addition to his Honour's view as to the prospects of success which confronted Mr Chang, he also observed that Mr Chang had had the benefit of the decision which he sought to impugn. In other words, it was an operative factor in the exercise of his Honour's discretion that the case before him fell into the category of cases in which the person required to give security had already had the benefit of a hearing by another court or tribunal and was seeking, as it were, to have a second go. That does put a slightly different light on Mr Chang's case to the extent that it might otherwise be thought helpful in the present circumstances.
21 A recent example of a judge of this court adverting to what I what I have described as the general principle was Randall v Deputy Commissioner of Taxation (2008) 110 ALD 41. Lander J said (at 55 [87]):
The general rule is that where the applicant is a natural person he or she will not be required to provide security for costs merely because he or she is impecunious. Pearson v Naydler …. That said, however, it is necessary to have regard to the circumstances of the case generally to determine whether the case is an appropriate one for an order for security of costs.
In the circumstances, his Honour was not prepared to make such an order against the applicant before him.
22 In the present case, Gray J did not mention these, or, for that matter, any, authorities in his reasons of 22 October 2010, probably because his Honour was not referred to them. Notwithstanding that, he came, in my respectful opinion, very close to identifying the principle for which the authorities stand when he said that a powerful factor in an application for security was whether the applicants being asked to provide security were natural persons or corporations. However, my reading of his Honour's reasons leads me to the view that he treated that powerful factor as one of a number of relevant matters that ought to be placed on the scales in the exercise of his discretion under s 56 of the Federal Court Act. To the extent that his Honour was proceeding by reference to a view that that discretion was unconfined by any principles, or general rules or propositions, there is some support for it in the cases to which I have referred, but it may likewise be said that the preponderant weight of authority, both ancient and modern, is that a general principle does exist, even at times expressed to be a rule - that natural persons should not be obliged to provide security on account of their impecuniosity in the absence of some special or particular circumstance affecting the case at hand.
23 When Gray J said, in the passage to which I have referred above, that there was no universal rule that a natural person should not be the subject of an order for security, his Honour may have been technically correct in the sense that it could not be said that there was a rule of universal application which could never be departed from. But I am disposed to think that the sense in which his Honour used that expression, in the context of his reasons as a whole, was that he approached the task before him as though the circumstance that the applicants were natural persons, whilst a powerful one in the exercise of his discretion, was nonetheless no more than a factor in that exercise, and did not have the status of a principle or general proposition which should be departed from only in particular circumstances.
24 That brings me to the fifth factor to which I have referred above, namely, his Honour's reference to the poor prospects of success which, in his perception, the case presented. Although there is some suggestion in the decided cases that the prospects of the particular case might appropriately be taken into account in deciding whether a natural person should be required to provide security for costs, in none that I am aware of has the court actually gone to the extent of recognising the general principle, but declined to give effect to it upon the ground that the applicant's case is a poor one whilst, at the same time, refusing to strike out the relevant pleading or to make an order for summary dismissal.
25 In this respect I refer to the observation which Gray J made that he did not consider himself to be in a position to say that the allegations which the first and second applicants sought to make could never be successfully prosecuted. There is a very real question as to whether the weakness of the first and second applicants' case ought to have been regarded by his Honour as sufficient to overcome the circumstance that the applicants were natural persons. It may well have been so, and it may well have been a case in which the weakness, as it were, of the first and second applicants' claims would make it appropriate to require them to give security, notwithstanding the general principle to which I have referred. However, I do not read his Honour's reasons as proceeding at that level. That is to say, I do not understand him to have recognised a principle of the strength adverted to in the authorities to which I have referred, and to have excluded the operation of that principle on the ground of the poor prospects which the applicants' case held out.
26 The question to be determined is whether, in these circumstances, I should grant leave to appeal from the order for security for costs made by his Honour on 22 October 2010. The approach to be taken, of course, is that identified by the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 396 at 398-400. There are two questions which arise on a motion such as this. First, whether in all the circumstances the decision sought to be appealed from is attended by sufficient doubt to warrant it being reconsidered by the Full Court and, secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. This approach has very recently been reiterated by the Full Court in Re CSR Limited (2010) 265 ALR 703 at 706 [5]. In the circumstances of the present case, I should also mention what the Full Court in Décor said at 399-400:
In our opinion, the principles discussed in Niemann, and in the other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice … and an interlocutory decision determining a substantive right - where leave will more readily be granted.
27 In the present case, having given careful consideration to the discretionary factors to which I have referred, Gray J said (at [17]):
All of these factors make it seem to me that it will be very difficult for the applicants to succeed in making good their claim. As I have said, I would not be prepared to shut them out by striking out a pleading and not giving them leave to deliver a further pleading. I am prepared, however, to entertain the application for an order that they provide security for costs. It seems to me that the respondent ought not to be compelled to face claims of this nature, which it has a good chance of winning, when a win would be, to some extent, illusory because of the impecuniosity of the first and second applicants, and their consequent inability to satisfy an order for costs.
With respect to his Honour, if s 56 of the Federal Court Act gives rise to a broad discretion which cannot be confined by principles or guidelines, this passage in his Honour's reasons would be unexceptionable. On the other hand, if there is a general principle, as some of the cases have suggested - more so if there is something approaching a kind of universal rule, the existence of which Gray J denied in para 11 of his reasons - then his Honour's conclusion has the potential, in my respectful opinion, to be seen as more problematic.
28 It is difficult for me sitting as a single Judge of the court to form a conclusion whether the reasons of Gray J are attended by sufficient doubt as would justify the attention of the Full Court. I say that because the very nature of the jurisprudence which should govern the disposition of applications such as the present one is not free of uncertainty, and, on one view, deserves, in itself, the attention of the Full Court. I take into account the fact that, if the present motion goes to a Full Court, the first applicant is likely to represent himself, and the second applicant is likely to be unrepresented. Regrettably, this will not provide the ideal forensic environment for the resolution of the difficult legal questions to which I have referred. However, it does seem as though it will, almost inevitably, be thus in a situation in which a natural person is an applicant in a proceeding, and is unable to meet an order for security for costs. It will very commonly be the case that such a person will likewise be unable to fund their own representation.
29 As against those considerations, the obviousness of the injustice that would be visited upon the applicants in the present case cannot be denied. If the order made by Gray J stands, the first and second applicants will lose their personal claims to damages in circumstances in which they have already lost their house. This, in my view, is a powerful discretionary consideration favouring an opportunity for the applicants to test the judgment of Gray J in the Full Court. It is also relevant that, although interlocutory in form, Order 4 made by his Honour is final in effect. In the circumstances in which the applicants are unable to provide the security required by his Honour, that order will mean the end of their litigation.
30 The approach which I propose to take is not to grant leave to appeal, but rather to direct that the application for leave be heard by a Full Court under s 25(2)(e) of the Federal Court Act. That is because, as will be apparent from the reasons I have given above, I take the view that there is a quite obvious discretionary basis upon which the consequences of Order 4 for the applicants weigh in their favour to permit them to challenge the judgment below, and there is some reasonably apparent legal basis upon which they might be heard to say that Gray J had not decided the motion before him in accordance with what should be regarded as the jurisprudence proper to apply under s 56 of the Federal Court Act.
31 I will give such a direction, and I will make other orders which will have the purpose of ensuring that things are held, more or less, in the present status quo until the application for leave and any consequent appeal is heard by the Full Court. I will stay the operation of Order 4 and the relevant aspects of the costs order made by his Honour. Unless any of the parties persuade me otherwise, I will stay the proceedings generally, other than in relation to the leave to appeal, and I am disposed to make a direction that no further document be received by the Registrar in the proceeding before Gray J without the authorisation of a Judge of the court.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.