FEDERAL COURT OF AUSTRALIA

Bahonko v Sterjov [2007] FCA 1377

PRACTICE AND PROCEDURE – stay of orders of trial judge pending appeal – stay pursuant to O 52 r 17(1) of Federal Court Rules

Powerflex Services Pty Ltd v Data Access Co (1996) 137 ALR 498, cited

STANISLAWA BAHONKO v KOSTA STERJOV, SNEZANA STERJOVA, LISA McEWAN & LA KOSTA CHILD CARE & KINDERGARTEN PTY LTD

VID 743 of 2007

GOLDBERG J

27 AUGUST 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  Paragraphs 3 and 4 of the further amended notice of motion filed on 23 August 2007 be dismissed.

2.                  The applicant pay the respondents’ costs of and incidental to the further amended notice of motion filed on 23 August 2007, including the costs of the hearing on 27 August 2007.

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

REASONS FOR JUDGMENT

1                     In this matter the applicant has applied by way of notice of motion seeking relief arising out of orders made by Jessup J on 15 August 2007:  Bahonko v Sterjov [2007] FCA 1244.  The application was originally filed on 20 August 2007.  It was supported by an affidavit filed on the same day.  On 21 August 2007 a Deputy District Registrar of the Court wrote to the applicant as follows:

“I refer to the Notice of Motion received by the court on 20 August 2007 and supporting affidavit. 

I write to advise that, pursuant to Order 46 rule 7A(2) of the Federal Court Rules, I have been directed by a Judge of the Federal Court not to accept Items 1 and 2 of the Notice of Motion for filing or issuing.  However, the Judge has directed that Item 3 of the Notice of Motion be accepted for filing and issuing. 

I now return the documents to you.  If you wish, you may simply strike out Items 1 and 2 of the Notice of Motion and then file the further amended Notice of Motion and affidavit.”

2                     On 23 August 2007, in consequence of that letter, the applicant filed a further amended notice of motion in the form of the earlier motion save that items 1 and 2 in the earlier notice of motion had been struck out.  In that motion as further amended the applicant sought the following orders:

“3.       The orders given by Justice Jessup on 15 August 2007 stay (put on hold) until the appeal from those orders is fully determined.

4.         The stay order is applicable as from the date of this Motion that is 20 August 2007.”

At the same time on 23 August 2007, the applicant filed a further affidavit in support of the further amended motion. 

3                     On 15 August 2007 Jessup J delivered reasons for judgment and made orders in respect of two proceedings brought by the applicant which had been consolidated before him.  Those proceedings were:

1.         an application pursuant to s 170CP(1), of the Workplace Relations Act 1996 (Cth) (in the form it took in November 2005) alleging contraventions of ss 170CK(2) and 170CM of the Workplace Relations Act and other unlawful or tortious conduct;

2.         an application pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Act 1996 (Cth) alleging unlawful discrimination under the Racial Discrimination Act 1975 (Cth).

4                     On 15 August 2007, after delivering those reasons for judgment, Jessup J made the following orders:

“1.       To the extent not previously dealt with by the court, the motion of which the applicant gave notice on 4 May 2007 be dismissed.

2.         The fourth respondent pay the applicant damages in the sum of $50.

3.         The application otherwise be dismissed.

4.         The parties have leave to file and serve,

(a)        on or before 22 August 2007, their written submissions as to costs;

(b)        on or before 24 August 2007, any submission in reply to the costs submission of another party.”

5                     As I noted earlier, the applicant applies for a stay of those orders.  The jurisdiction and the power to grant such a stay is found in O 52 r 17(1) of the Federal Court Rules 1979 which provides:

“An appeal to the court shall not:

(a)       operate as a stay of execution or of proceedings under the judgment appealed from; or

(b)       invalidate any intermediate act or proceeding;

except so far as the Court or a Judge or the court below may direct.”

6                     The applicant has filed a notice of appeal, appealing against the judgment and orders made by Jessup J.  In due course that appeal will proceed to an appellate hearing subject to any other orders that might be made in the usual course of the preparation of an appeal.  The general principle which is applied in the Court is that an appeal does not operate as a stay unless the Court or a Judge otherwise orders.  Whether or not such a stay should be granted depends upon whether the Court or a Judge thinks in all the circumstances that the matter is an appropriate case for the grant of a stay.  See, for example, Powerflex Services Pty Ltd v Data Access Co (1996) 137 ALR 498.

7                     The application for the stay is made in respect of all the orders made by Jessup J but, as I understand it, particularly in respect of order number 4.  In respect of the first three orders there is not, so far as the applicant is concerned, anything to stay which might impact upon her. 

8                     The first order is that, to the extent not previously dealt with by the Court, the applicant’s motion is dismissed.  There is no point in staying that order if the applicant is dissatisfied with that order.  The proper process is to appeal against it and that she has done.

9                     The second order is that:

“The fourth respondent pay the applicant damages in the sum of $50.”

That is an order that works in favour of the applicant.  The applicant has said that she does not want to accept the money and would have to return it.  That is a matter for her but that is not an appropriate matter in respect of which the Court should grant a stay on the application of the applicant. 

10                  The third order is that:

“The application otherwise be dismissed”.

Again, that is not an appropriate matter for a stay.  The proper process if the applicant is dissatisfied with that order is to appeal against it and that she has done. 

11                  The fourth order is that the parties file and serve submissions as to costs.  Granting a stay of that order would, in effect, be to stay part of the determination and trial of the matters which are before the trial judge.  In due course, presumably, Jessup J will make an order as to costs.  The terms of that order is, at this point of time, a matter of speculation and it is not appropriate to indulge in speculation. 

12                  The applicant puts her case for a stay in respect of the costs order on a number of bases.  Before I turn to those bases I have formed the view that it is not an appropriate case to grant a stay against an order that simply directs that the parties file and serve submissions and submissions in reply on questions of costs.  That is an unnecessary and unwarranted interference with the trial process.  If in due course an order for costs is made adverse to the interests of the applicant, then, if she is so disposed, that is a matter that the applicant can make application to have dealt with by the appellate court.

13                  As I understand the applicant, she is apprehensive that in due course Jessup J will make a costs order which will be adverse to her and she is concerned that that will disadvantage her in a number of respects.  If such a costs order is made in due course it can be the subject of an appeal.  Whether or not it should be the subject of a stay depends upon whether it is an appropriate case for a stay.  I do not consider that it is an appropriate case for a stay at this stage. 

14                  The applicant has raised a number of matters and made a number of submissions as to why this is an appropriate case for a stay and I deal with those as I understood them to be put.  The applicant made a number of submissions generally on the basis that corruption had happened between Jessup J and counsel for the respondents.  I do not consider there is any basis whatsoever for those submissions and there is nothing in the material before me that would support such submissions.  Let me deal however, with the submissions that went specifically to the reasons why a stay should be granted.

15                  The applicant said that she wanted to prosecute her appeal properly.  In my view it is open to her to prosecute her appeal properly, even if a stay is not granted in respect of any of the orders made by Jessup J.  The applicant submitted that I should consider the matter with due care and I have considered the matter with due care but I do not consider that she is inhibited in any way from prosecuting her appeal if a stay is not granted.  The applicant also submitted that the stay was absolutely necessary for the proper administration of justice.  I do not consider that the proper administration of justice is interfered with if a stay is not granted and I do not see any basis on which the stay is necessary for the proper administration of justice.  Her appeal can be prosecuted.  It is not inhibited if a stay is not granted and she is still able to prosecute her appeal properly.

16                  The applicant submitted that she would suffer great injustice if a stay was not granted.  I understood that injustice to be on the basis that she would not be able to prosecute the appeal properly.  I cannot see any foundation for that submission.  The applicant submitted further that it would save resources if the orders of Jessup J were put on hold, but as she is already seeking to prosecute her appeal the resources of the parties will be devoted towards the appeal and no resources are saved by a stay at this stage.  If a subsequent order for costs is made adverse to the interests of the applicant then that is a matter that can be picked up and dealt with in any appeal.

17                  The applicant seemed to be under a misapprehension that there was open to her an alternative remedy if a stay was not granted by way of seeking an injunction.  At this stage the appropriate process is for the applicant to appeal against the orders and judgment of Jessup J if she is so disposed and that she has done.  Apart from the stay application there is no injunctive basis available to the applicant as I understand the position. 

18                  The applicant also submitted that she was not able to meet any order for costs and that she suffers from ill‑health.  No costs order has been made against her at this stage and any application in relation to not being able to meet any costs order certainly, at this stage, is premature.  The applicant submitted that there was no argument to be put against the stay but as Mr McKenney, who appeared for the respondents, submitted, the general principle is that an appeal does not operate as a stay unless a Judge or a Court otherwise orders. 

19                  In all the circumstances I do not consider, for the reasons to which I have referred, that this is an appropriate case for the grant of a stay under O 52 r 17(1) of the Federal Court Rules.  The orders of the Court will be that paragraphs 3 and 4 of the further amended notice of motion filed on 23 August 2007 be dismissed and that the applicant pay the respondents’ costs of and incidental to the further amended notice of motion filed on 23 August 2007, including the costs of the hearing this day.

Associate:

Dated:         30 August 2007