THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION V. THE STATE OF VICTORIA AND JOHN SPENCE WINNEKE

THE AUSTRALIAN BUILDING CONSTRUCTION F

S_AND_ BUILDERS

'

LABOURERS FEDERAT LON .

'ORTA_AND JOHN SPI

JUDGMENT STEPHEN J.

(In Chambers)

THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS

LABOURERS FEDERATION

THE STATE OF VICTORIA AND JOHN SPENCE WINNEKE

This is an application under Order 70, Rule 12

of the Rules of this Court by what I shall call, as a matter

of shorthand, the Builders Labourers Federation for removal '

of a stay of the judgment pronounced by the Full Court of

the Federal Court of Australia.

The stay at present in existence applies by virtue

of Order 70, Rule 12(2), the appellants, the State of Victoria and Mr Winneke having given security for costs pursuant to Rule 10 of Order 70. It may be noted in passing that it is not contended that the proceedings here in question were

criminal proceedings such as are referred to in Order 70,

Rule 12(2).

A removal of the existing stay may, under the Rules of this Court, only be ordered under Ruiec 12(3) which, so far as relevant, provides that in the case of any appeal the

High Court (or a Justice) may

unless the appellant gives such further security within such time, in such manner and in such amount as appears to the Court, Justice or Judge to be

just, to satisfy or obey the judgment appealed from",

The scope of Rule 12(3) is far from Clear. It is at least arguable that it only applies to, and hence that the power it confers is confined to, those causes to which the nature of the order to be made as contemplated by the rule is appropriate; namely, cases where an order might be » made for the removal of the stay unless the appellant gives further security to satisfy or obey the judgment appealed from. Such an order would seem inappropriate in the present

case,

If the power conferred by Rule 12(3) to remove a stay is indeed so confined there nevertheless exists, in my view, an inherent power in the Court to so act as to preserve the subject matter of proceedings pending the outcome of an