minutes of order

THE COURT ORDERS THAT:

1.                     Leave be granted for the purpose of correcting the order of the trial Judge and that the order be amended to read:-

                        “Judgment of 5 May 1997 be stayed pending the hearing and determination of the review or earlier order on the condition that the compensation ordered by the Judicial Registrar be paid into court within 14 days.”

2.                     Leave be otherwise refused to the applicant to appeal from the interlocutory order of the trial Judge.

3.                     The application for leave to appeal be dismissed, with costs.

Note:               Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

THE COURT:   The Court is of the view that leave should not be granted to the applicant to appeal from the interlocutory order of Wilcox CJ.  The Court discourages appeals on matters of practice and procedure and this is such a matter.  It involved discretionary elements.  It is for the judge making such an order to make up his own mind in relation to those elements on the material before him.  A Full Court will not intervene unless there is a point of principle involved.  In our opinion there was, in this case, no particular point of principle involved.

The learned Judge was dealing with the matter in the directions list at 9.30.  His Honour was asked orally to make an order for a stay of the judgment of the Judicial Registrar.  There was before his Honour no material stating that the applicant seeking the review was a solvent company, that there was no prospect that the moneys would not be paid or that the applicant company would suffer hardship were it required to pay the sum into Court or make other provision for security, such as by way of a bank guarantee.  It appears that counsel for the applicant company wished to debate before his Honour matters of that nature and also wished to debate what he said were deficiencies in the judgment of the Judicial Registrar.  However his Honour, at that point of time, did not have before him the written judgment of the Judicial Registrar, which did not become available until a later time.

Had counsel wished to put to the learned Judge the matters which have been outlined to us, the proper course would have been to ask his Honour to set aside time for the hearing of a motion for a stay.  His Honour, if asked to set aside time, would have given directions for the setting down of a motion and directions for the filing of appropriate affidavits.  But that was not done.  A stay was requested at a time when His Honour had no material before him and when the judgment of the Judicial Registrar was not available.  His Honour simply applied what his Honour considered to be a usual course, namely to order a stay on the condition that the sum be paid into Court or that arrangements be made for the giving of a bank guarantee.

In our opinion, that is not a matter involving any point of principle.  We do not take the view that there is any prima facie rule that judgments of Judicial Registrars should be stayed pending a review.  In our opinion, the learned Judge was correct in treating the matter on the footing that there was a judgment against the applicant company, although the judgment was one which was to be reviewed on its merits on the date which his Honour stipulated.  It follows that it was not wrong for his Honour to take the view that, if a stay was requested, then, unless there was material before him which indicated reasons to the contrary, a condition should be imposed that the payment be secured during the period of the stay. 

It was of course an interlocutory decision and being an interlocutory decision it was one which could at any time have been changed by his Honour.  Counsel for the applicant company was no doubt caught a little by surprise when the respondent's counsel indicated that the judgment sum should be paid into Court as a condition of the grant of the leave and when the matter proceeded on that basis.  But nevertheless, it was an interlocutory decision and, accordingly it was always open to the applicant company to return before his Honour to move to terminate or alter the order on motion supported by appropriate material.

We are of the view that this was a matter of practice and procedure for Wilcox CJ and that leave should not be granted to appeal from his Honour’s decision.  The application will therefore be dismissed.

I certify that this and the preceding

2 pages are a true copy of the Reasons

for Judgment herein of the Court.

Associate:

Date:    23 September 1997

Counsel for the applicant:                      J.F. Hassett, solicitor

Solicitor for the applicant:                      Jonathon Hassett

Counsel for the respondent:                   J.P. Capsanis, solicitor

Solicitor for the respondent:                  J.P. Capsanis & Co Solicitors & Attorneys

Date of hearing:                                    23 September 1997

Place of hearing:                                   Sydney

Date of judgment:                                 23 September 1997