Federal Court of Australia

Conradsen v Carpentaria Land Council Aboriginal Corporation [2023] FCA 1373

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 11 October 2022 be dismissed.

2.    By 16 November 2023, the respondent file and serve written submissions on costs of no more than three pages in length.

3.    By 23 November 2023, the applicant file and serve written submissions in response of no more than three pages in length.

4.    Unless by 24 November 2023 either party requests an oral hearing, the costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THOMAS J:

BACKGROUND

1    On 19 August 2022, in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) Mr Kimm Conradsen’s (the applicant) general protections application (Conradsen v Carpentaria Land Council Aboriginal Corporation [2022] FedCFamC2G 679) (decision) was dismissed.

2    By way of order dated 19 August 2022, the primary judge directed the parties to file written submissions on the question of costs, with the matter to be determined on the papers.

3    On 31 August 2022, the Carpentaria Land Council Aboriginal Corporation (the respondent) filed written submissions on the question of costs.

4    On or about 25 September 2022, the applicant filed in this Court an application for an extension of time within which to file his notice of appeal from the decision.

5    On 6 October 2022, the primary judge directed the applicant to file written submissions in response by 17 October 2022.

6    On 11 October 2022, the applicant filed an interlocutory application in this Court seeking orders staying the primary judge from making a determination on the question of costs.

7    On 14 October 2022, the primary judge, by consent, vacated his directions of 6 October 2022 pending an outcome of the applicant’s stay application in this Court.

APPLICANT’S SUBMISSIONS

8    The applicant referred to the decision of Halley J in Energy Beverages LLC v Cantarella Bros Pty Ltd (No 2) [2022] FCA 394 in which it was stated (at [44]) that “stays of costs orders are not usually condoned absent impecuniosity or similar obstacles, but that there are unusual practical reasons for staying the Costs Orders”.

9    It was submitted that the following “obstacles” of the applicant are relevant:

(a)    legal abilities as a self-represented litigant;

(b)    caring obligations;

(c)    impecuniosity; and

(d)    medical diagnosis.

10    The applicant submitted that he would experience further hardship and inequality before the law “if he were to meet the orders regarding costs in the Lower Court” and that the time it would take the applicant to meet the obligations under the costs directions would be contrary to the efficiency of this Court.

11    The applicant contended that he had acted with integrity and to the best of his abilities and, it seemed, contrasted this position with that which arose in Finch & Finch (No.3) [2020] FCCA 72 (Finch) (Judge Willis) which dealt with the “time wasting” conduct of a party seeking a stay on costs as a relevant factor. The applicant noted that, unlike the Family Court jurisdiction in which Finch was decided, in the Fair Work Act 2009 (Cth) (FW Act) jurisdiction, costs are the exception, not the norm.

12    The applicant submitted that the respondent had not acted with integrity and provided examples of this. The applicant continued that the primary judge did not act to correct the respondent whose legal representatives conducted themselves “with disregard for the administration of justice”, increasing “the cost in running the proceedings”, diminishing “the [a]pplicant’s legal entitlement to have time to prepare for [the] hearing” and increasing “the burden on the tax payer [sic] funding the administration of the Court”.

13    The applicant further submitted that it was “contrary to the administration of justice to send the [a]pplicant back before the lower Court prematurely”.

14    The applicant continued that the conduct of the respondent’s officers undermined the applicant’s legal entitlements and that they conducted themselves contrary to the administration of justice.

15    As to the decision, the applicant submitted that the decision misapplied the law and made significant factual errors. The applicant continued that the timetabling orders made by the primary judge, if not stayed by this Court, would result in further error by enlivening s 570 exceptions to costs under the FW Act.

DISCUSSION

16    The application is purportedly made under r 36.08(2) of the Federal Court Rules 2011 (Cth).

17    The application is not, in fact, for a stay of the enforcement of a judgment pending an appeal, but rather a stay which seeks to prevent the primary judge from hearing and deciding the question of costs. Those two actions are quite different.

18    Rule 36.08(2) states that “an appellant or interested person may apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined”.

19    The reference to “execution” of the proceeding refers to the process of execution on a judgment in the proceeding. There has been no judgment as to costs. The order sought by the applicant seeks to prevent the process which will lead to a judgment being handed down.

20    In Commissioner of Taxation v Rowntree (No 2) [2021] FCA 268, Rares J considered a stay application to stay a hearing on penalty. A similar issue arose in relation to the power derived from r 36.08. In that case, Rares J concluded that, as a superior court of record, the Court “has an inherent or implied power to grant a stay of proceedings” (at [13]).

21    I agree with the conclusion reached by Rares J.

22    In relation to this Court’s power to order a stay, s 29 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) deals with this Court’s appellate jurisdiction from decisions and orders of the FCFCOA and provides:

(1)    Where an appeal to the Court from another court has been instituted:

(a)    the Court or a Judge … may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from …

23    The proceedings which are the subject of the application are proceedings under the judgment appealed from.

24    The respondent accepted at the hearing on this application before me on 6 April 2023 that this Court has jurisdiction to order a stay in costs proceedings.

25    The principles relevant to determining whether a stay of an enforcement of a judgment pending an appeal is to be granted are clear:

(a)    A court should not readily delay the enforcement of a judgment obtained after a trial. Following a trial, the successful party should generally have an unrestricted entitlement to enforce the judgment.

(b)    The rules permitting the Court to grant a stay pending an appeal are in place to prevent possible injustice arising from a judgment, which might subsequently be overturned, being enforced.

(c)    It is not necessary for an applicant seeking a stay to show “special” or “exceptional” circumstances. The applicant must demonstrate that the case is an appropriate one for the exercise of the discretion in the applicant’s favour.

(d)    The applicant for a stay must necessarily provide sound reasons to justify a suspension of the successful party’s right to recover judgment.

(e)    There must be some merit to the appeal. The potential prejudice which might be suffered by the parties as a result of the granting or refusing of a stay are relevant to the degree of confidence which a court needs to have in the appeal’s prospects of success.

(f)    A relevant consideration is whether there is a risk that it will not be possible for the applicant to be substantially restored to its former position if the stay is not granted and judgment were to be executed against it.

26    These principles were outlined by Derrington J in Stefanovski v Digital Central Australia (Assets) Pty Ltd [2017] FCA 1121 at [4].

27    The applicant has the onus to satisfy the Court that the requirements for the stay are made out.

28    I agree with what was said by Greenwood J in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2008] FCA 1867 (at [39]):

[T]he discretion, although importantly broad, is a true exception, conditioned by demonstrated circumstances, to the general proposition that an appeal does not operate as a stay … it is sufficient but also necessary that the applicant for a stay demonstrate “a reason” or an “appropriate case” to warrant the exercise of discretion in the applicant’s favour … A reason tipping the balance in favour of an applicant in an appropriate case will take account of whether the applicant has discharged an onus of demonstrating that a stay order, in the terms proposed, is “fair to all parties” having regard to the balance of convenience (i.e. the balance of risks and irremediable harm) and the competing rights of the parties.

(italics in original; citations omitted)

29    As mentioned above, a relevant issue is whether there is a real risk that the applicant will suffer any permanent detriment if the stay were refused (for example, and it were impossible for the applicant to be substantially restored to his former position if the costs judgment was executed against him).

30    Given that the primary judge has not had the opportunity to consider the question of costs, no costs order has, as yet, been made. It is possible that there might be no order as to costs payable by the applicant in which case the need for a stay would not arise.

31    Moreover, the respondent had provided an undertaking in the following terms, by way of submissions dated 28 October 2022 and confirmed by counsel at the hearing:

[I]f the [primary judge] should determine the cost question and order the [a]pplicant to pay the [r]espondent’s costs, the [r]espondent undertakes that it will – at that time - consent to a stay of the [primary judge’s] cost orders until such time as the [a]pplicant’s appeal against the [d]ecision is heard and determined by the Federal Court (the Undertaking).

(bold in original)

32    The provision of the undertaking means that any risk to the applicant arising from enforcement of a costs judgment is eliminated.

33    The remedy being sought by the applicant is a discretionary remedy. In exercising the discretion, it is necessary for me to take into account all the circumstances. The circumstances include:

(a)    if the costs issue is determined in favour of the applicant so that no costs are payable by the applicant, there will have been no need for the stay;

(b)    if the applicant is unsuccessful, and a costs order is made against the applicant, the undertaking will operate so that there will be consent to a stay of the costs orders until such time as the applicant’s appeal against the decision is determined in this Court. Given the undertaking, there is no risk of irremediable harm which can be shown by the applicant; and

(c)    in the event that the applicant is unsuccessful and there is an order for costs against the applicant, and the applicant decides to appeal that order (as the applicant indicated that he will do), this appeal could be heard together with the appeal against the decision. This results in a more efficient determination of the entire matter and is in the interests of both parties and consistent with the overarching objective of this Court as contained in s 37M of the Federal Court Act.

34    In those circumstances, it is not appropriate to grant a stay in the form sought by the applicant.

35    I dismiss the application.

36    In relation to the question of costs, the respondent submitted the following:

5.1    The [r]espondent invites the [a]pplicant to discontinue his stay application on the basis of the [r]espondent’s Undertaking that if the [primary judge] should determine the cost issue and make an order that the [a]pplicant pay the [r]espondent’s costs, the [r]espondent will consent to a stay of that cost decision until such time as the [a]pplicant’s appeal of the [d]ecision is heard and determined by the Federal Court.

5.2    If the [a]pplicant should discontinue his Stay Application on or before 8 November 2022, then the [r]espondent will consent to that discontinuance with no order as to costs.

5.3    If the [a]pplicant should however refuse to discontinue his Stay Application, and if the Application should thereafter be dismissed by the Federal Court, then the [r]espondent will submit that it is entitled to an order for its scale costs up to 8 November 2022, and thereafter on the indemnity basis.

37    In relation to costs, I order that:

1.    By 16 November 2023, the respondent file and serve written submissions of no more than three pages in length.

2.    By 23 November 2023, the applicant is to file and serve written submissions in response of no more than three pages in length.

3.    Unless by 24 November 2023 either party requests an oral hearing, the costs will be determined on the papers.

Associate:

Dated:    9 November 2023