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: "… because of the way in which [the Order] is framed, a stay being the exception, the applicant must show special circumstances…" 6 It is wholly fallacious to think that an order of the Court disposing of an action is in any sense provisional merely because an appeal has been lodged. A stay is not ordered as of course, a stay is only ordered if appropriate circumstances are shown to justify the intervention of the Court in this special way. 7 Mr Fritz has filed a number of affidavits and has been given leave to read a further affidavit filed this morning. He has entirely failed to point to anything at all in any of the material he has filed, which would provide any foundation for entitling him to stay the costs order. The general rule is that the successful party in an action, as determined by a judgment of the Court, is entitled to the fruits of that action, notwithstanding that the unsuccessful party may have filed an appeal. There is an entire absence of any material provided by Mr Fritz which could provide any justification for keeping any of the respondents out of their entitlement to the benefits of the costs order made in their favour by Cooper J. 8 So far as the second order sought by the notice of motion is concerned as to service by registered mail, that order would serve a purpose if there was something before me to suggest that Mr Fritz might have some chance of obtaining a stay of Cooper J's costs order. As I have said, Mr Fritz has entirely failed to point to anything at all which might conceivably provide a foundation for a stay of a costs order. To order service of the motion seeking a stay of the costs order on the two respondents not appearing today would be utterly futile. I decline to make that order. The result is that the notice of motion is dismissed. 9 Mr Fritz having indicated no basis at all why the general rule should not apply, I will order that he pay the costs of the first and fourth respondents of and incidental to his notice of motion. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate: Dated: 29 March 1999 The Applicant appeared in person. Counsel for the First Respondent: E. Ford Solicitor for the First Respondent: Paul Hayes Counsel for the Fourth Respondent: M. Plunkett Solicitor for the Fourth Respondent: Crown Law Date of Hearing: 29 March 1999 Date of Judgment: 29 March 1999