FEDERAL COURT OF AUSTRALIA

Australian Solar Mesh Sales Pty Ltd v Anderson

[1999] FCA 964

PRACTICE AND PROCEDURE – application by the appellant for a stay of orders pending appeal – whether if moneys paid into Court by way of security for costs were paid out they would be repaid is appeal succeeded – absence of evidence as to means of respondents to repay – question of onus

Federal Court Rules  O 52 r 17, O 37 r 10

Henderson v Amadio Pty Ltd (1996) 136 ALR 593, 65 FCR 66, followed

Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 at 189, cited

AUSTRALIAN SOLAR MESH SALES PTY LIMITED v NEVILLE JOHN ANDERSON & ORS

N562 of 1999

GYLES J

SYDNEY

24 JUNE 1999

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.         The applicant appellant pay the costs of the respondents.

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

EXTEMPORE REASONS FOR JUDGMENT

1                     This is an application under Order 52 rule 17, or alternatively Order 37 rule 10, for a stay pending appeal.  There have been some difficulties with the formalities in relation to the matter due to a change of solicitor and I have made orders which are intended to cure that problem. 

2                     Counsel for the appellant, the applicant for the stay, initially put the submission that to not order a stay would be to stultify, or may be to stultify, the appeal.  I indicated to him that in my view that submission was not open to him unless there was evidence to indicate a proper basis for the submission and that it would also involve him in persuading me that the chances of success on the appeal were sufficient to warrant a stay on that basis.  In view of the absence of evidence, counsel for the appellant was unable to pursue that aspect of the matter. 

3                     However, he relied upon an alternative basis, namely, that if the moneys paid into Court by way of security for costs were paid out and, presumably, if there were any other execution of the judgment which led to his client paying moneys to the respondents to the appeal, then there was no certainty that the moneys would be repaid.

4                     Counsel for the appellant pointed to the fact that the judgment under appeal indicates that the respondents are the trustees of the Spruson and Ferguson Unit Trust, and in effect says to me that all that is known and all the Court knows is that there are a series of individuals who carry on business as patent attorneys.  There can be no certainty of any assets being held by any of those persons sufficient to repay the amount of costs paid in the meantime if the appeal were to succeed.  He, echoing something that fell from myself, I think, indicated that in this day and age persons subject to professional liability obligations are liable to protect themselves by not having assets in their own name and also that there are other reasons of a revenue nature which may lead to all assets being held otherwise then in the names of the partners.

5                     Mr Nicholas, counsel for the respondents to this application and the respondents to the appeal, did not lead any evidence on behalf of his client on this point and put the submission that he was not obliged to do so as the applicant led no evidence on the point.  He conceded that in a practical sense the shifting of the onus, if there be one, would not have been a difficult task. 

6                     There is no evidence before me of any inquiry of the respondents as to their means or any inquiry as to satisfying the applicant of those means.  There is simply no evidence one way or another before me on the point.  That does mean that the question of onus is of some importance because I do not think it is a fanciful notion that the respondents may not be able to meet the amount in question, although having in mind the relatively small amount involved spread over a number of parties it is not a possibility which one would infer lightly. 

7                     Neither counsel were able to, or did, refer me to any authority on the point.  I adverted to the commentary in the Butterworths Practice and Procedure, High Court and Federal Court of Australia at paragraph 47,145.10 where there is an extract from a judgment of Heerey J in Henderson v Amadio Pty Ltd (1996) 136 ALR 593 at 595, where his Honour said:

“For example, where the judgment sought to be stayed is for payment of a money sum and costs, as is the case here, the appellant will often be concerned with the prospect that without a stay the proceeds of the judgment may be dissipated or seized by other creditors or for some other reason be impossible or very difficult to recover.  In such a case the appellant has to show there would be no reasonable probability of getting back moneys paid under the judgment if the appeal succeeds.” (emphasis added)

His Honour referred in that connection to Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 at 189.  This passage from Heerey J supports the proposition advanced by Mr Nicholas that it is for the appellant to show that lack of reasonable probability of getting back moneys paid, although it seems to me that the appellant, in order to carry that onus, would not need to do very much to throw upon the respondent the need to show means.  I take into account that this matter was before me on 21 June 1999 and that since then each party has had a chance to consider its position. I think under the circumstances that Mr Nicholas' submission is correct.  If I dismiss the application for a stay then the ordinary processes will follow.  If the appeal succeeds then, inevitably, there would be an order for repayment of any amount of costs received.  That should be sufficient in the circumstances of the case to secure the applicant, bearing in mind the evidence that has been led, or not led, before me.  In my view the appellant has not established a case for a stay and I would make the appropriate orders, if the practical effect of that will be that the moneys and securities paid into court will be paid out. 

8                     There remains the question of the balance, that is, the balance between the moneys paid into court on the one hand and the amount provided for by order 5 on the other.  There is also a potential liability of a greater amount in the event of a taxation of costs.  Whilst I do not propose to make any order about it, and whilst I certainly do not wish to encourage successive interlocutory applications, the appellant will no doubt have the opportunity of seeking to persuade the Full Court, or a delegate of the Full Court, to grant a stay if there were any execution sought to be levied in relation to those extra amounts.  In saying this I am not suggesting that in any way the Court would or should give consideration to it, but I take that possibility into account in the conclusion I have come to about this matter at this stage.

9                     I therefore dismiss the application with costs. 

Associate:

Dated:              19 July 1999