CATCHWORDS PRACTICE - application for stay of execution pending appeal - lack of stay rendering appeal nugatory - whether any arguable point for appeal. JUDGMENTS - stay of execution pending appeal. Richard Edward Baker & Ors. i. wf v. Clyde Evans & Ors. _ og im Qld. G136 of 1986 gs PINCUS J. BRISBANE 26 MAY 1987 IN _THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G136 of 1986 GENERAL DIVISION ) BETWEEN: RICHARD EDWARD BAKER PETER ANTHONY HUGHES KEVIN ALLAN MONTGOMERY First Applicants AND: JOHN COSTELLO KENNETH GORDON RONALD HOPKINS Second Applicants AND: CLYDE EVANS First Respondent AND: CHRISTOPHER ALEXANDER BUTTNER Second Respondent AND: STANLEY THOMAS WOODS Third Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 26 MAY 1987 WHERE MADE: BRISBANE THE COURT ORDERS: 1. that the first applicants pay one-half of the respondent's costs of and incidental to the proceedings to he taxed, including reserved costs; 2. that the second applicants pay one-half of such costs as mentioned in order (1); aa, 3. NOTE: that the documents seized and held in the registry, under the warrant in issue in the first applicants' case, be delivered forthwith to the Director of Public Prosecutions; that the documents held in the registry, in respect of the warrants in issue in the second applicants' case, be delivered to the Director of Public Prosecutions on 16 June 1987, unless the following conditions are satisfied: (a) that the second applicants file and serve a notice of appeal and prepare and lodge the record in respect of the appeal on or before 15 June 1987; (b) that the second applicants file and serve on or before 15 June 1987 an undertaking, signed by them personally, not to rely in any further proceedings, criminal or otherwise, relating to the matters in question in the case, upon any delay consequent on their appeal or any further appeal. 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 G136 of 1986 GENERAL DIVISION ) BETWEEN: RICHARD EDWARD BAKER PETER ANTHONY HUGHES KEVIN ALLAN MONTGOMERY First Applicants AND: JOHN COSTELLO KENNETH GORDON RONALD HOPKINS Second Applicants AND: CLYDE EVANS First Respondent AND: CHRISTOPHER ALEXANDER BUTTNER Second Respondent AND: STANLEY THOMAS WOODS Third Respondent PINCUS J. 26 MAY 1987 EX TEMPORE REASONS FOR JUDGMENT This is a further hearing in respect of the judgment I delivered this morning. Two matters have been argued: one is the question of the stay and the other is costs. As to the stay, I have noted the remarks of Dawson J. in Federal Commissioner of Taxation v. Myer Emporium Ltd. (1986) 64 A.L.R. 325 at 327, and in particular his Honour''s acceptance of the view that special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory. I have been much troubled by the argument put forward by Mr. Wyvill Q.C. that the applicants should have no stay for the reason that the matters in question have already been considered at two levels and that there 1s no arguable point put forward as to either branch of the case. However, it seems to me that the two branches of the case are capable of being rationally distinguished. As to the first, having considered the matter and heard what Mr. Boulton has to say, I still am of the view that the points put forward do not sound to have any great chance of success. In particular, the suggestion that the Court should have "lifted the veil" so as to treat as of no significance the important legal distinction between those interested in the company and the company itself seems to be unorthodox. As to the second branch of the case, however, its very complexity suggests that there may be aspects of i1t - perhaps aspects not so far argued - which are able to be reasonably agitated before the Full Court. I have, therefore, determined that there should be a stay as to the second applicants' case but not as to the first. It is, of course, an invidious task for any judge to consider whether there is a reasonable argument against the correctness of the view he has just expressed, but it seems to me to have been a convenient course to have considered the application for a stay myself, rather than to have required the parties to go to another judge, if for no other reason than that to acquire the necessary familiarity with the case to deal with the matter would take some considerable time. As to costs, I am persuaded by Mr. Boulton that it is fair to split the liability for costs. There is something to be said for the view that an order more favourable to the respondents should be made, but, on the whole, I think justice would be done if the first applicants were ordered to pay half the costs and the second applicants ordered to pay half the costs, rather than leaving the liability as joint. The only risk which 1s run, apart from the possibility of reversal on appeal, is that one set of applicants may be insolvent. The orders will therefore be as follows: l. that the first applicants pay one-half of the respondent's costs of and incidental to the proceedings to be taxed, including reserved costs; 2. that the second applicants pay one-half of such costs as mentioned in order (1); 3. that the documents seized and held in the registry, under the warrant in issue in the first applicants' case, be delivered forthwith to the Director of Public Prosecutions; ae i that the documents held in the registry, in respect of the warrants in issue in the second applicants' case, be delivered to the Director of Public Prosecutions on 16 June 1987, unless the following conditions are satisfied: (a) that the second applicants file and serve a notice of appeal and prepare and lodge the record in respect of the appeal on or before 15 June 1987; (b) that the second applicants file and serve on or before 15 June 1987 an undertaking, signed by them personally, not to rely inany further proceedings, criminal or otherwise, relating to the matters in question in the case, upon any delay consequent on their appeal or any further appeal. I direct that the parties may apply to the Court on reasonable notice 1n respect of any matter necessary to be dealt with and relevant to the orders I have made. — i certify that this and the OD preceding pajes are a true copy of the reasons for judjment herein of His Honour Mr Justice Pincus AO] Associate Dated 26 May (G& 7