Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Dudzinski v Kellow [1999] FCA 1665 WALDEMAR DUDZINSKI v AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, WILLIAM HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT and GRIFFITH UNIVERSITY Q 110 OF 1999 SPENDER J 23 NOVEMBER 1999 BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY Q 110 OF 1999
BETWEEN: WALDEMAR DUDZINSKI
Applicant
AND: AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, BILL HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT and GRIFFITH UNIVERSITY
Respondents
JUDGE: SPENDER J
DATE OF ORDER: 23 NOVEMBER 1999
WHERE MADE: BRISBANE
THE COURT ORDERS THAT: 1. The application for a stay of each of the orders of the Full Court of the Federal Court, made on 27 August 1999, is refused. 2. The applicant on the motion pay the costs of the respondents on the motion, to be taxed if not agreed. 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 Q 110 OF 1999
BETWEEN: WALDEMAR DUDZINSKI
Applicant
AND: AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, BILL HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT and GRIFFITH UNIVERSITY
Respondents
JUDGE: SPENDER J
DATE: 23 NOVEMBER 1999
PLACE: BRISBANE
REASONS FOR JUDGMENT 1 I have before me a notice of motion filed on 5 November 1999 by Waldemar Dudzinski. This motion seeks orders that the order of the Full Court of the Federal Court made on 27 August 1999, that the application for leave to appeal is dismissed "…be stayed pending special leave to appeal B56/99 and the appeal to the High Court of Australia". A second order is sought on the motion, that the order of the Full Court of the Federal Court of 27 August 1999, that the applicant is to pay the respondents' costs of the application for leave "…be stayed pending special leave to appeal B56/99 and appeal to the High Court of Australia". 2 It is clear that the first order sought is misconceived. The general principles upon which this Court will order a stay were referred to by Cooper J in Carter v Geoff Layton & Co Pty Ltd (1993) 43 FCR 392, where his Honour said at 394: "The court will not stay proceedings pending the hearing of an application for special leave to appeal unless satisfied that a stay is required to preserve the subject matter of the litigation (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) at 683; McMillan v Hambledon Nominees Pty Ltd (No 2) [1991] 1 Qd R 118 (FC); Manfal Pty Ltd (In liq) v Trade Practices Commission (1990) 65 ALJR 256 at 257; Elspan International Ltd v Aerospatiale Holdings Ltd (1992) 67 ALJR 177 at 178) or to otherwise ensure that any right to appeal is not rendered nugatory eg where execution would deprive an appellant of the means of prosecuting the appeal (Smith, Hogg & Co Ltd v Black Sea and Baltic General Insurance Co Ltd (1940) 162 LT 11 (CA) at 12. The court may also act where the refusal of a stay would make it difficult for the High Court in the determination of the appeal to grant the relief sought (Manfal Pty Ltd (In liq) v Trade Practices Commission at 257).
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