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

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.

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).

In addition the court will consider whether there is a substantial prospect of leave being granted, whether the stay will cause loss to the respondent, and, the balance of convenience (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) at 685; Elspan International Ltd v Aerospatiale Holdings Ltd at 178).  However, the process is not an exercise in weighing the advantages and detriment or in balancing the convenience of parties (Manfal Pty Ltd (In liq) v Trade Practices Commission at 256)."

3                     So far as the application for a stay of the order made by the Full Court, that Mr Dudzinski pay the respondents' costs of his unsuccessful application for leave to appeal from the order of Drummond J made on 8 April 1999, Mr Dudzinski's submissions were concerned with the quantum of the costs that might be imposed, and secondly, because of his inability to pay whatever costs might be ordered on taxation, the prospect that his application for special leave will be frustrated by the making of a sequestration order, and, in that sense, his rights of appeal would be rendered nugatory.

4                     The question of the quantum of costs is a matter for taxation.  It is not a matter that, in my opinion, is a relevant factor on the application for a stay order of an order for costs.

5                     So far as considerations flowing from Mr Dudzinski's claim that he is unable to pay any costs that might be payable on taxation, the considerations referred to by Brennan J in Sali v SPC Ltd (1993) 67 ALJR 515 are relevant.  His Honour said at 516:

"It seems to me that whether or not a stay is granted in respect of the enforcement of the costs order, that right of appeal does not stand in need of any preservation.  Whether or not a stay order is made, the application for special leave can be considered and an appeal can be heard and determined.  If a stay is refused, there will be no embarrassment to the making of any appropriate order if the applicant should succeed either on the application for special leave to appeal or on the appeal.  It therefore appears to me that the application is not one which attracts the operation of the jurisdiction to grant a stay."

His Honour continued:

"Although that will be the basis of the decision which I propose to make in this matter, I should indicate that, in my view, the application is misconceived for another reason.  The real substance of the application which the applicant seeks to make is to preserve the assets which he has against the depredations of a sequestration order.  He seeks to do that on the grounds that the making of a sequestration order may, as it were, be made prematurely if, in the result, the application for special leave to appeal to this Court succeeds and the appeal, which follows, also succeeds.

That is a submission which seems to me to be more appropriately made to the court which is to hear the application for a sequestration order.".

6                     So, too, it seems to me, is the consideration of the consequences of the making of a sequestration order on the prosecution of Mr Dudzinski's various causes of action in this Court and in the High Court.  It will be a matter for consideration whether any of those matters is "sufficient cause" within s 52 of the Bankruptcy Act 1966, for the Court not to make a sequestration order.

7                     It also should be noted that these considerations are very much prospective.  The taxation process which occurs pursuant to O 62 of the Federal Court Rules has not commenced, let alone a certificate of taxation capable of enforcement having been issued, so the basis for the making of an application for a bankruptcy notice is well in the future.

8                     Further, as a matter of principle, where one has a money judgment, a stay will not be granted unless there is a real risk that, if the money is paid, it cannot be repaid should the appeal be successful: see Patton v Minister for Defence (1987) 13 FCR 476.  In this particular case, one of the respondents is Griffith University, and so the risk that is the relevant consideration in that context is not a real one.  Further, even if the respondents seek to enforce the costs order prior to the special leave application being heard, the Court can make an appropriate order to restore the applicant to his position, and that would not affect the ability of the appeal to be heard.

9                     I should say further that, in my opinion, none of the requirements for the making of a stay has been made out in this case.

10                  The prospects of leave being granted are, in my assessment, remote.  The considerations referred to by Drummond J at first instance and by the Full Court of the Federal Court (French, Whitlam and Lindgren JJ) make it plain that there are quite remote prospects of leave being granted.  One is dealing here with an interlocutory judgment, where a consideration of the interests of justice, including the interests of both parties, indicates that the appropriate forum to prosecute the remaining causes of action of assault and negligence is the District Court.  The observations of McHugh J in Collier v Sengos (1993) 67 ALJR 810 are relevant.

11                  The application for a stay of each of the orders of the Full Court of the Federal Court is refused.

12                  In this particular case, the usual consequences of failure on a motion should apply.  Notwithstanding the submission by Mr Dudzinski that the Full Court, in making the orders it did, acted in abuse of process, and notwithstanding Mr Dudzinski's intimation that he proposes to appeal my refusal of the making of stays, I order that the applicant on the motion pay the costs of the respondents on the motion, such costs to be taxed if not agreed.

Associate:

Dated:              30 November 1999