FEDERAL COURT OF AUSTRALIA

Wodrow v Commonwealth of Australia [2003] FCA 906

WILLIAM WODROW v COMMONWEALTH OF AUSTRALIA

AG 6 OF 1992

GYLES J

15 AUGUST 2003

CANBERRA

THE COURT ORDERS THAT:

1.         The time within which to file a notice of motion seeking leave to appeal from the judgment of her Honour Justice Stone given on 2 May 2003 at Canberra be extended.

2.         The balance of the notice of motion is stood over for hearing by a Full Court.

3.         The parties should provide argument as on appeal at the hearing of the motion.

4.         Costs to date are to be costs in the motion.

5.         An appointment be made to settle papers for the hearing of the motion.

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

REASONS FOR JUDGMENT

1                     This is a motion, firstly, for extension of time within which to file a notice of motion for leave to appeal and, secondly, for leave to appeal from a judgment given on 2 May 2003, refusing to stay execution upon a judgment (Wodrow v Commonwealth of Australia [2003] FCA 403).  So far as the first application is concerned, I am satisfied that there is an explanation for the delay.  The question remains whether or not there are sufficient prospects of success to warrant the proceeding going on any further.  That is, of course, linked with the second issue as to whether or not leave to appeal ought be granted.

2                     The respondent has, naturally, relied upon the well-known authorities stressing the difficulties of appealing against an exercise of discretion by a trial judge, particularly in circumstances where, if not technically a matter of practice of procedure, it is very close to being a matter of practice and procedure.  Those authorities are accepted, in essence, by counsel for the applicant and, as the argument has developed, the issue is quite narrow and confined.  It is that the primary judge set out to give effect to principles applied by French J in Busby v Australian Telecommunications Commission (unreported, 25 February 1992), where his Honour applied principles enunciated in the English courts in relation to want of prosecution generally to the question arising under O 37 r 10 of the Federal Court Rules.  In particular, the applicant relies on the statement in that judgment to the effect that the Court has power to order a stay of proceedings where there has been delay which gives rise to serious prejudice to an innocent party.  As I read the primary judge’s decision, her Honour set out to consider that question on the basis that, the principle having been challenged, she looked at whether or not there was material which would incline her to exercise her discretion in favour of the applicant, assuming the principle to be applicable.  The complaint which is made is that she gave no separate consideration to the effect of a combination of delay and serious prejudice.  In particular, there was no separate or adequate consideration of the evidence, given by the applicant, that he had arranged his affairs on the basis that a bill of costs would not be presented.  That factor was both expressly raised in the applicant’s evidence and expressly referred to in the statement of facts and contentions prepared for the purposes of the hearing.   

3                     Counsel for the respondent submits that, on a proper reading of the judgment, commencing with her Honour's express reference to the test at par 15, what follows between par 15 and par 37 of the judgment constitutes a comprehensive treatment of the argument.  In particular, he points to the last part of par 36 and the whole of par 37 to make that point. 

4                     I agree that the reasons of a primary judge are not to be pedantically gone through to find error, but I need say no more than that counsel for the applicant does put forward an argument which is capable of acceptance on this point which is of some cogency if French J's decision in Busby is correct, and in particular if that decision gives a sound guide to dealing with the factual issue which arises here.  I say that because I find it very difficult to distinguish the evidence in Busby's case from the effect of the evidence in this case.  It has been submitted on behalf of the respondent that the case is easily distinguishable because of the different findings of fact.  I am not persuaded that that is the case.  No doubt there is an argument to that effect, but it is not overwhelmingly clear.  The primary judge did not expressly refer to the evidence in question and reject it.  Her Honour did not refer to it and explain why it would not be of significance.  It appears from the judgment that the primary judge accepted that the applicant had the belief that the Commonwealth was not going to pursue the costs.  That seems to me to be the same finding of fact as was made in Busby.  However, in the present case, her Honour apparently took the view that the holding of the belief was not reasonable.

5                     A Full Court may take the view that Busby is not a sound guide to the exercise of the discretion granted by  O 37 r 10 in relation to a stay of execution, as authorities dealing with want of prosecution generally are of little significance in that particular situation.  It was argued below that Busby was wrong and should not be followed, and counsel for the respondent indicates that that will be the contention if leave be granted in this case.   Counsel for the applicant says that this makes it an appropriate case for leave.  Whether that be so or not, I think if leave were granted it undoubtedly would be necessary to form a view as to the correct principles to be applied in relation to O 37 r 10.  I should add that neither counsel has referred me to any direct authority on that rule going beyond Butterworths Federal Court Practice and Procedure.

6                     I therefore cannot conclude that the prospects of success are so slight as to impel me to refuse to extend time, and I propose to extend time.  The question of whether leave ought be granted is in another category.  I have already indicated that the applicant has available some arguments.  It is not for me to judge the ultimate strength of them, but they are by no means overwhelming and there is much to be said for the submissions, both written and oral, which have been put on behalf of the respondent.

7                     I propose to refer the question of leave to a Full Court on the basis that that Full Court will hear full argument from the parties as on appeal and will deal with the whole matter.  Because of the confined nature of the argument and the doubt concerning Busby, that seems to me to be the best course to be taken.    The third order sought is the receipt of further evidence on the appeal.  It was accepted by counsel that that was a premature application which can be revived before the Full Court if it is found necessary to do so.

8                     The orders of the Court are:

(1)        Order one of the notice of motion as asked;

(2)        the balance of the notice of motion is stood over for hearing by a Full Court;

(3)        the parties should provide argument as on appeal at the hearing of the motion;

(4)        costs to date are costs in the motion;

(5)        an appointment be made to settle papers for the hearing of the motion.

Associate:

Dated:              28 August 2003