Fritz v Torres Strait Regional Authority [1999] FCA 401

FEDERAL COURT OF AUSTRALIA

Fritz v Torres Strait Regional Authority [1999] FCA 401

DENNIS MELVIN FRITZ v TORRES STRAIT REGIONAL AUTHORITY & ORS QG 121 OF 1998 DRUMMOND J 29 MARCH 1999 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 121 OF 1998

BETWEEN: DENNIS MELVIN FRITZ

Applicant

AND: TORRES STRAIT REGIONAL AUTHORITY

First Respondent

MR EDWARD DAU ON BEHALF OF THE BOIGU ISLAND PEOPLE

Second Respondent

MR RAYMOND SAGIGI AND OTHERS ON THEIR OWN BEHALF AND ON BEHALF OF THE PEOPLE OF BADU ISLAND

Third Respondent

DEPARTMENT OF NATURAL RESOURCES QUEENSLAND

Fourth Respondent

JUDGE: DRUMMOND

DATE OF ORDER: 29 MARCH 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The notice of motion filed 22 March 1999 be dismissed.

2. The applicant pay the costs of the first and fourth respondents of and incidental to his notice of motion.

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 QG 121 OF 1998

BETWEEN: DENNIS MELVIN FRITZ

Applicant

AND: TORRES STRAIT REGIONAL AUTHORITY

First Respondent

MR EDWARD DAU ON BEHALF OF THE BOIGU ISLAND PEOPLE

Second Respondent

MR RAYMOND SAGIGI AND OTHERS ON THEIR OWN BEHALF AND ON BEHALF OF THE PEOPLE OF BADU ISLAND

Third Respondent

DEPARTMENT OF NATURAL RESOURCES QUEENSLAND

Fourth Respondent

JUDGE: DRUMMOND

DATE: 29 MARCH 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 Mr Fritz has applied by notice of motion for an order, firstly, that the operation of the whole of the order given on 5 March 1999 in the above matter by Cooper J be stayed pending the finalisation of the appeal by the applicant of his Honour's judgment filed on 22 March 1999. Secondly, Mr Fritz seeks an interim order, as he describes it, authorising him to provide service of this notice of motion, supporting affidavit and the notice of appeal to all respondents by registered mail. He also seeks an order for costs in respect of the notice of motion. 2 So far as the first order sought is concerned, Mr Fritz has orally narrowed the ambit of that claim to an order seeking a stay only of the costs order made by Cooper J. So far as the second order relating to service on the respondents by mail is concerned, the first respondent and the fourth respondent, although not formally served, have appeared by counsel and are prepared to deal with the entire motion. The second and third respondents have not been served and do not appear today. 3 On 5 March 1999, Cooper J gave a reserved judgment in Mr Fritz's action in which Mr Fritz claimed title to certain islands in the Arafura Sea. He made a number of associated claims. Cooper J concluded that all were without substance and would fail and accordingly he dismissed Mr Fritz's entire action. 4 The application for the stay of the costs order, as it has now been made clear is the only stay order that Mr Fritz is seeking, is brought under O 52 r 17 the Federal Court Rules. That rule provides that an appeal, which Mr Fritz already has lodged against the judgment of Cooper J, shall not operate as a stay of execution or of proceedings under the judgment appealed from except so far as the Court or a judge of the Court below may direct. The consequences of the rule being in that form are discussed by the Full Court of Queensland in relation to the Queensland rule, similar in form to the Federal Court rule, in the case of JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255. 5 At 258 in a judgment with which the other members of the Court agree, Derrington J said of the Queensland rule: