i ~ CATCHWORDS PRACTICE - order of Full Court of Federal Court - foreshadowed application for special leave to appeal to High Court - application for stay of order for costs made by Full Court - whether single judge has jurisdiction. Federal Court of Australia Act 1976, s.25(1) Federal Court Rules, 0.37, r.10 Judiciary Act 1903, s.77U Brian William Patton v. The Honourable Kim Christian Beazley Minister of State for Defence Qld. G33 of 1986 PINCUS J. BRISBANE 24 MARCH 1987 IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G33 of 1986 GENERAL DIVISTON ) r BETWEEN: BRIAN WILLIAM PATTON Applicant AND: THE HONOURABLE KIM CHRISTIAN BEAZLEY MINISTER OF STATE FOR DEFENCE AND THE COMMONWEALTH OF AUSTRALIA Respondents MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 24 MARCH 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The notice of motion be dismissed; 2. The applicant pay the respondent's costs of and incidental to the notice of motion to be taxed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G33 of 1986 GENERAL DIVISTON ) r BETWEEN: BRIAN WILLIAM PATTON Applicant AND: THE HONOURABLE KIM CHRISTIAN BEAZLEY MINISTER OF STATE FOR DEFENCE AND THE COMMONWEALTH OF AUSTRALIA Respondents PINCUS J. 24 MARCH 1987 EX TEMPORE REASONS FOR JUDGMENT This notice of motion, filed and argued by Mr. Patton, is for orders staying the execution of an order of the Full Court that the applicant pay costs. The history of the matter is as follows. The applicant instituted proceedings in the High Court asking for certain relief; they were remitted to this Court under s.44 of the Judiciary Act. I gave judgment in the matter on an application made by the defendants attacking the statement of claim. I refused an amendment then sought by the present applicant and struck the statement of claim out. The applicant then appealed to the Full Court, which dismissed the appeal but with a variation of the orders made by me, the variation being that the proceeding brought by the applicant was dismissed generally with costs. Now the applicant proposes to seek special leave to appeal to the High Court from the judgment of the Full Court and is concerned that the parties so far successful, the respondents, may execute the order for costs in their favour before he has time to approach the r High Court. Although not mentioned in the notice of motion, there is a further application before me that the sum of $3,500, which was paid into Court by the applicant when he obtained from the Full Court leave to appeal from my judgment referred to above, be released to him. Miss Wilson has appeared for the respondents and has argued, in effect, that I have no power to make the orders sought, and that if I have such power, I should not do so. Since the question of power has been raised, it is desirable to set out briefly the argument advanced by Miss Wilson and my views about it. My attention was drawn to 0.37, r.10, which 1s in the rules headed "Judgment and Orders: Enforcement". It reads: "The Court may stay execution of a judgment or order." Miss Wilson's argument is that since the matter has gone to the Full Court, it is only that Court which may stay the order, but she has, very helpfully, referred me to a decision in the Victorian Supreme Court having a contrary tendency, that being Joskovitz v. Bonnick £19641 V.R. 654 at p.656; it was concerned with the interpretation of 0O.XLII, r.17(b) of the then Victorian Supreme Court rules, whose effect seems indistinguishable from that of 0.37, r.10. r Reference was also made during the course of argument to the provisions of" s.25, sub-s.(i1) of the Federal Court of Australia Act 1976, which are that: "The appellate jurisdiction of the Court shall, subject to this section and the provisions of any other Act, be exercised by a Full Court." Miss Wilson contended that the orders sought would, if made, be an exercise of appellate jurisdiction. An application similar to the present one was made to the Supreme Court of New South Wales sitting in banc in Ex parte Quaine; In re McKay (1912) 12 S.R. (N.S.W.) 662. There, the Court stayed the execution of an order for costs pending application to the High Court for special leave. It was argued in that case that there was no power to make such an order because no appeal had been instituted, and reference was made to s.38 of the High Court Procedure Act 1903 (repealed). The Supreme Court made the order sought but, of course, the objection raised by Miss Wilson did not there arise. It is worthwhile mentioning further authority as to applications of this sort in New South Wales, but before doing so I refer to the decision of Zelling J. in August Investments Pty. Limited v. Poseidon Limited (1971) 2 S.A.S.R. 92. That case had gone to the South Australian Full Court and notice of application for leave to appeal to the High Court had been lodged. An application was made to Zelling J. to restrain implementation of a takeover scheme, which was "in issue in the case, in an interim way; his Honour held that he had no jurisdiction to do so. The view which he took was that the then s.38 of the High Court Procedure Act, which gave power to order a stay, had to he construed under the rule expressio unius est exclusio alterius, so as comprehensively to set out the circumstances in which a_ stay could be granted when a matter was taken to the High Court. That as, his Honour did not think that s.38 of the High Court Procedure Act, giving power to order a stay when an appeal had been instituted, left any room for jurisdiction in the Supreme Court to order a stay at the stage of application for special leave. It is of interest, however, that his Honour did not suggest that the fact that an application was made to a single judge created a difficulty. The decision of Zelling J. was referred to with approval by the Full Court of the Supreme Court of South Australia in Van Reesema v. Giameos (No. 2) (1977) 17 S.A.S.R. 390 at p.393. That case also had gone to the Full Court of the Supreme Court of South Australia and leave to appeal to the Privy Council was sought. In rejecting an application for a stay on grounds which need not be analysed in detail, the Full Court adopted an argument similar to that accepted by Zelling J. However, the Court of Appeal in New South Wales has taken quite the opposite view in F.A.I. Insurances Limited v. Registrar of the Workers' Compensation Commission of New South Wales C19821 1N.S.W.L.R. 239. There, also, the matter was going to the Privy Council after a Court of Appeal decision, and that r Court, following earlier New South Wales authorities, held there was inherent power to grant a stay. In my view, the provisions of the present s.77U of the Judiciary Act 1903, which are the same as those of s.38 of the High Court Procedure Act, dealt with by Mr. Justice Zelling except that the word "judge" is used for the word "justice", are not such as implicitly to deprive this Court of power to order a stay, and on that point I prefer the view expressed in the Court of Appeal. The nature of the jurisdiction exercised on an application for a stay is discussed by French J. in Hempel v. Moore (unreported, 9 March 1987) in which, after referring to Bercove v. Hermes (No. 2) (1983) 51 A.L.R. 105, a decision of Toohey J., his Honour said at p.1l: "Tt does not appear from the report precisely how it was that the appellant invoked the original jurisdiction of the court." That is, his Honour did not gather how it was that, in the case before Toohey J., that jurisdiction had been invoked. His Honour went on: "In the present case the appellant's motion is brought into appeal proceedings. In the exercise of the powers conferred upon it in its appellate jurisdiction by s.28 of the Act, the court may have occasion, in making an order under Vane $.28(1)(b), to make an order of a kind that could have been made under s.23 in its original jurisdiction. But there is on the face of it no power in a single judge to make interlocutory orders under s.23 in pending appeal proceedings." " His Honour referred to s.25(1) of the Federal Court of Australia Act. That case, like Bercove v. Hermes, is different from the present in that the matter was to go to the Full Court of the Federal Court; 1t was not past that stage. Since the matter has been argued by Miss Wilson, I should say that I am unpersuaded that the Court - more particularly, a single judge of the Court - lacks jurisdiction to make such an order as is sought. Further, I cannot accept the contention that if such an application as this were made to the Full Court 1t would be an exercise of its appellate jurisdiction. That jurisdiction would appear to me now to be exhausted, and an application for a stay pending the pursuit of this matter to the High Court, cannot, ain my respectful opinion, properly be described as invoking this Court's appellate jurisdiction. Iam of opinion, therefore, that under 0.37, r.10, to which Miss Wilson referred me, and also under s.23, there is power to make interim orders in circumstances of this sort ~- to grant a stay or other necessary order. It is particularly important, in my opinion, that such power exist because the Full Court ordinarily sits in Brisbane only twice a year, and it is expensive for litigants to travel to other cities to make applications of this kind. It appears a convenient position that an application for a stay may be made to a single judge, and also seems to me in accordance with the Federal Court Act and the rules. In fact, "the Full Court will sit at Brisbane very shortly and, it may be arguable that if an order were made it should be operative only until the Full Court sittings, so that the Full Court may reconsider the matter. I accept that, unless convenience dictates otherwise, 1t 1s (prima facie) desirable that such an application as this be dealt with by the Full Court. To come now to the merits, Mr. Patton says, in effect, that he 1S impecunious and he has filed an affidavit to that effect. He says that, not only does he wish the order for costs (which the respondents propose to enforce as soon as they may) he stayed, but he wants the $3,500 mentioned above to pursue his application to the High Court. It is undesirable that I say anything about the merits of the appeal which has been dealt with in the Full Court, but I am obliged to note that applications for special leave to appeal to the High Court commonly fail. More importantly, as Miss Wilson has argued, the general principle is that an order for payment of money will not be stayed pending appeal, unless there is a risk that, if the money is paid, it cannot be repaid should the appeal be successful. That risk does not here exist. The general principle is that prima facie the successful party has the right to the fruits of the judgment, and special circumstances must be shown to justify a stay. Although it' seems to me unfortunate that Mr. Patton's financial position is so parlous, it is clear in my opinion that it is my duty to reject his application. This motion will be dismissed with costs. * 4 certify that this and ihe 7 preceding Pages ate a true copy of tra reasare for judgment herein of His Honour ; Mr Justice Pincus AMET Associate Dated Ly Chock FF 7