Baker, R. v Evans, C.

[1987] FCA 284

C A T C H W O R D S

PRACTICE - application for stay of execution pending appeal - lack of

stay rendering appeal nugatory	- whether any arguable polnt for
appeal.

JUDGMENTS - stay of execution pending appeal.

Rlchard Edward Baker & Ors.

v. Clyde Evans & Ors.

Qld. G136 of 1986

PINCUS J.

BR I SBANE

26 MAY 1987

IN THE FEDERAL COURT OF AUSTRALIA	)
9UEENSLAND DISTRICT REGISTRY	) QLD G136 of 1986

DIVISION GENERAL )

:	B	-	RICHARD EDWARD BAKER
PETER ANTHONY HUGHES
KWIN ALLAN MONTGOMERY

First Applicants

AND:

JOHN COSTELLO

K E N m GORDON

RONALD HOPKINS

Second Appllcants

AND: CLYDE WANS

First Respondent

AND: CHRISTOPHER ALEXANDER BU'ITNER

Second Respondent

AND: STANLEY THOMAS WOODS

Thlrd Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: PINCUS J.

DATE OF ORDER: 1987 26 MAY

WHERE MADE: BR I SBANE

THE COURT ORDERS:

1. that the first applicants pay one-half of the respondent's

costs of and incidental to the proceedings to be taxed,

including reserved costs;

2 . that the second applicants pay one-half of such costs as

mentioned in order (1);

3 . that the documents seized and held in the registry, under the

warrant in issue In the first applicants' case, be delivered
forthwith to the Director f Public Prosecutions;
4 .	that the documents held in the registry, in respect of the
warrants in issue in the second applicants' case, be

delivered to the Director of Public Prosecutlons on 16 June

1987, unless the following conditions are satisfied:

that the second applicants file and serve a notice of

appeal and prepare and lodge the record	in respect	of
the appeal on or before 15 June 1987;

that the second applicants file and serve on or before

15 June 1987 an undertaklng, signed by them personally,

not to rely in any further proceedlngs, crimlnal or

otherwlse, relating to the matters in questlon in the

case, upon any delay consequent on their appeal or	any
further appeal.

Settlement and entry of orders is dealt with m

Order 36 of the Federal Court Rules.

IN THE FEDEFAL COURT OF AUSTRALIA	)
9UEENSLAND DISTRICT REGISTRY	) QLD G136 of 1986
GENERAL DIVISION	)

BETWEEN: RICHARD EDWARD BAKER

PETER ANTHONY HUGHFS

KEVIN ALLAN MONTGOMERY

First Appllcants

AND: J O H N COSTELLO

KENNETH GORDON RONALD HOPKINS

Second Appllcants

AND: CLYDE EVANS

First Respondent

AND: CHRISTOPHER ALEXANDER BUTTNER

Second Respondent

AND: STANLEY THOMAS WOODS

Thlrd Respondent

PINCUS J. 26 MAY 1987

EX TEMPORE REASONS FOR JUDGMENT

This is a further hearing in respect of the ~udgment I delivered thls morning. Two matters have been argued: one 1s the question of the stay and the other is costs.

As to the stay, I have noted the remarks of Dawson J. in

Federal Cornmissloner of Taxation v. Mver Emporium Ltd. (1986) 64

2 .

A.L.R. 325 at 3 2 7 , and in particular his Honour's acceptance of the view that special circumstances justlfying a stay will exlst where it is necessary to prevent the appeal, if successful, from

being nugatory. I have been much troubled by the argument put

forward by Mr. Wyvill Q.C. that the applicants should have no stay

for the reason that the matters in question have already been

considered at two levels and that there 1 s no arguable point put forward as to either branch of the case. However, it seems to me

that the two branches of the case are capable of belng ratlonally

distingulshed. As to the first, havlng consldered the matter and

heard what Mr. Boulton has to say, I still am of the vlew that the

points put forward do not sound to have any great chance of

success. In partlcular, the suggestlon that the Court should have

"llfted the ve11" so as to treat as of no slgnlflcance the

important legal dlstinctlon between those lnterested In the

company and the company itself seems to be unorthodox.

As to the second branch of the case, however, Its very

complexlty suggests that there may be aspects of It - perhaps

aspects not so far argued - whlch are able to be reasonably

agitated before the Full Court. I have, therefore, determlned

that there should be a stay as to the second appllcants' case but

not as to the first.

It is, of course, an invldlous task for any judge to

consider whether there is a reasonable argument against the

correctness of the view he has just expressed, but it seems to me

to have been a convenient course to have considered the

application for a stay myself, rather than to have required the

3.

parties to go to another ~udge, if for no other reason than that to acquire the necessary familiarity wlth the case to deal with

the matter would take some considerable time,

As to costs, I am persuaded by Mr. Boulton that it is

fair to split the liability for costs. There is something to be

said for the view that an order more favourable to the respondents

should be made, but, on the whole, I think justlce would be done

if the first applicants were ordered to pay half the costs and the

second applicants ordered to pay half the costs, rather than

leaving the liability as jolnt.

The only risk which 1s run, apart from the posslblllty

of reversal on appeal, is that one set	of appllcants may be
Insolvent.

The orders will therefore be as follows:

1. that the flrst appllcants pay one-half of the respondent's

costs of and Incldental to the proceedlngs to be taxed,

includlng reserved costs;

2. that the second appl icants pay one-half of such costs as

mentioned in order (1 ) ;

3 . that the documents seized and held in the registry, under the

warrant in issue in the first applicants' case, be delivered

forthwith to the Director of Public Prosecutions;

4 .

4 . that the documents held in the registry, in respect of the

warrants in issue in the second applicants‘ case, be

delivered to the Director of Public Prosecutions on 16 June

1987, unless the following conditions are satisfied:

(a) that the second applicants file and serve a notice of

appeal and prepare and lodge the record in respect of

the appeal on or before 15 June 1987;

(b) that the second applicants file and serve on or before

15 June 1987 an undertaking, signed by them personally,

not to rely in any further proceedings, crlmlnal or

otherwise, relatlng to the matters in question in the

case, upon any delay consequent on their appeal or any

further appeal.

I dlrect that the parties may apply to the Court on

reasonable notice In respect of any matter necessary to be dealt

wlth and relevant o the orders	I have made.
: certlfy ! h + thl; 2nd t1.e 5 preced~ng
p a y s are a true CS?] cf the reasons for
IudJrrcnt hcreln of HIS Honour
Mr Justlce Plncus , & V a

Associate

Dated 26 My l’rC-7