Martin Terry v Huge Lights Pty Limited and Others

CATCHWORDS: Practice and Procedure - notice of motion - respondents seeking stay of costs order made earlier in proceedings - disobedience of orders - costs orders have not been appealed - power to order stay considered - order for stay declined - no basis for exercise of discretion established

Civil Procedure Act 2005 LEGISLATION CITED: Evidence Act 1995 Industrial Relations Act 1996

Barataud v Chipperfield (No 3) [2006] NSWIRComm 249 DJL v The Central Authority (2000) HCA 17 Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612 CASES CITED: Jago v District Court of New South Wales (1989) 168 CLR 23 Martin Terry v Huge Lights Pty Limited and Others [2005] NSWIRComm 448 Nutshack Franchise Pty Ltd and Others v Smith and Another (1999) 90 IR 355 Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Mr BKB Cross of counsel SOLICITORS: Ronald M Fluit, Solicitor LEGAL REPRESENTATIVES:

RESPONDENTS: Mr RD Newell of counsel SOLICITORS: LC Muriniti & Associates

MARTIN TERRY V HUGE LIGHTS PTY LIMITED AND OTHERS (No 2)

Application under s.106 of the Industrial Relations Act 1996

1 In September 2006 the respondents filed a motion seeking various orders. The applicant responded by filing another motion, seeking various different orders. When the motions came on for hearing on 11 October, the parties had resolved most of the issues lying between them, as to the matters raised in the motions. This judgment deals with one matter pressed by the respondents - namely, a stay of orders made in these proceedings in December 2005, when an application for an order under s 67 of the Evidence Act 1995 was refused and the respondents were ordered to pay the applicant's costs of the motion as agreed or assessed. (See Martin Terry v Huge Lights Pty Limited and Others [2005] NSWIRComm 448.) The costs were payable forthwith. The respondents now seek an order that the applicant refrain from seeking to enforce the certificate of determination of costs which he has obtained, until completion of these proceedings. 2 It was common ground that costs were not agreed by the parties after the order was made last December and that as a result, they were assessed, with the assessment being made and served on the respondents on 10 April 2006. Neither the order itself, or the assessment was appealed. Nevertheless, the costs remain unpaid. 3 The respondents' case was that they did not seek to challenge the finality of the costs order made, Rather, a stay was pressed because of the likely prejudice which the respondents would suffer, if the order was not stayed. It was submitted that what had come to light in the evidence given by the applicant during the later hearing of these proceedings was that he had dissipated all of his funds; that he had no assets; that he had not filed tax returns and had kept no records which would enable him to file such returns. It followed that if the respondents paid the costs they had been ordered to pay, they would be in an invidious position, if they successfully resisted the applicant's case. They would have no prospects of recovering any orders made in their favour against the applicant, despite having already paid him the costs ordered to be paid last December. It was argued that the likelihood of such prejudice arising provided a proper basis for the stay sought being granted. 4 The respondents submitted that the Court had power to order such a stay, even though no specific provision was made in the Industrial Relations Act 1996, for the making of such an order. It was argued that the Court was a superior court of record, even though a statutory court of limited jurisdiction. The provisions made in s 152 of the Act accordingly carried with them such incidental or implied power as was necessary to permit the grant of a stay. (See Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612 at 619; Taylor v Taylor (1979) 143 CLR 1 at 16; DJL v The Central Authority (2000) HCA 17 at [25] and Jago v District Court of New South Wales (1989) 168 CLR 23 at 74). 5 It was further submitted that the power to grant a stay was also conferred on the Court by s 135 of the Civil Procedure Act 2005. It was argued that the power to grant a stay had been granted in analogous cases, such as where a defendant claimed a right of set off; where there was an outstanding cross claim and where a judgment did not finally determine the parties' rights. 6 It was the applicant's case that there was no basis for, nor evidence supporting the grant of, the stay sought. The time for payment of the costs order was specifically addressed in the December 2005 judgment. There was no appeal from that judgment and the Court was accordingly functus as to that matter, having made an order as to costs in the particular circumstances and terms made. The respondents' assessment of the likely prospects of success in the case the applicant pressed was disputed. At this stage of the proceedings, it was argued that no fair assessment could be made as to the likely outcome of the proceedings. The evidence also showed that the applicant was currently engaged in the film industry. It did not establish that he was a man of straw. 7 In any event, the idea that the sums ordered to be paid would be frittered away had to be considered in the context that it was an order as to legal costs already incurred, which was sought to be stayed. 8 It was also submitted that the Act only permitted a stay to be granted in the context of an appeal (s 190). That there was any inherent power to grant a stay of the kind claimed was denied, given the statutory scheme. In the alternative, it was submitted for the respondents that the order be stayed on the basis that the sum in question be paid into Court. Consideration

9 I am satisfied that this application for a stay comes at a time when, even assuming power, a discretion to grant the stay could not be exercised in favour of the respondents, as a matter of justice between these parties. The costs order made in December 2005 was made upon the dismissal of an application for an order under s 67 of the Evidence Act, which, as the judgment reveals, had no proper foundation. It was in the circumstances in which that application was made and pressed at the hearing of the motion, that the order that costs of the motion be payable forthwith was made. 10 The respondents did not appeal that order, but nevertheless have ignored it. If there be power to order a stay, as they assert, plainly their delay in making that application does not assist them to establish any proper basis for the exercise of a discretion in their favour. 11 Such a situation was discussed recently by a Full Bench of the Court in Barataud v Chipperfield (No 3) [2006] NSWIRComm 249, where it was observed: 42 Those conclusions are reinforced by yet a further consideration. Staff J's orders were made on 9 February 2006. The decision was not appealed within the time fixed by s 189, nor were the orders made complied with. The applications for an extension of time to appeal and stay of the decision were filed on 10 March. The applications were dismissed by Boland J on 20 April. The application for leave to appeal and appeal from Boland J's decision and the stay of Staff J's orders, were filed on 10 May and on 19 May, the application for stay was refused by this Full Bench. 43 Even at the hearing of the application for leave to appeal and appeal on 24 July, the orders made by Staff J had not been complied with. As we noted in Barataud (No 2), those orders are protected by s 179 of the Act. Mr Barataud has, nevertheless, proceeded as if, pending consideration of his various applications, those orders have been stayed. The Act does not so provide. 44 A similar situation arose for consideration in Nutshack Franchise Pty Ltd and Others v Smith and Another (1999) 90 IR 355. There the Full Court was dealing with s 106 proceedings where the trial judge had made various orders, including orders in relation to the payment of money. The orders had not been complied with; no stay had been sought and still the unsuccessful appellant sought to challenge the trial judge's orders on appeal. The Full Court took the view that given the provisions of the Act as to the finality of decisions made by the Court, subject to leave to appeal being sought and an appeal granted, or a stay of the orders made being sought and granted, that continued disobedience of the Court's orders at first instance amounted to an abuse of process. 45 Consequently in Nutshack, the application for leave to appeal and appeal were stayed, until further order of the Court. That left open the possibility that the abuse would cease. In that event, the Full Court noted that the abuse would become relevant to a consideration of the appellant's application for leave to appeal (see at 363). 12 Like the orders made in Barataud and Nutshack, the order made in these proceedings last December is subject to the provisions of s 179 of the Act, which provides: 179 Finality of decisions (1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal. (2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal. (3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law. (4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of: (a) the Full Bench of the Commission in Court Session, or (b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision. (5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise. (6) This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law. (7) In this section: decision includes any award or order.

13 Contrary to the submissions advanced, it does not appear that the Court has power to grant the stay sought pursuant to the provisions of the Civil Procedure Act, given the provisions made in ss 4 and 5 of that Act. This Court is not one of those appearing in Schedule 1 to the Act, as a Court to whom that legislation applies. 14 It follows that if there be a power to grant a stay of a costs order such as that here in question, it can only flow from an implied power, permitting the Court to ensure that there may be a proper exercise of the jurisdiction and powers conferred upon it by the Act. I am of the view that such a power may exist, as a part of an implied power to prevent abuse of the Court's process. (See Jackson at 614, where Deane J referred to the judgment of Bowen CJ in the Federal Court, where his Honour discussed the implied powers necessary for a statutory court to exercise the jurisdiction and powers expressly conferred upon it and to prevent abuse of its process). 15 That such a power would be exercised in favour of the respondents in this case, when they have neither appealed the costs order in question, nor sought that it be stayed, but have simply ignored it, if not since December 2005, at least since the costs were assessed in April 2006, is a course which justice could not favour. The approach of Full Benches of the Court in Nutshack and Barataud, clearly militate against such a conclusion. 16 As to the arguments advanced in relation to the likely outcome of the proceedings and the applicant's ability to meet any order made against him, I am of the view that the conclusions invited may not be safely reached at this stage of the proceedings.

Orders 17 For all of these reasons, I decline the stay sought.

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