Comcare Australia v Amorebieta, F.X

[1995] FCA 47

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )          No. 352 of 1994
  )
GENERAL DIVISION                 )

B E T W E E N:

COMCARE AUSTRALIA
  Applicant
  - and -

FRANCIS XAVIER AMOREBIETA
  Defendant

JUDGE:    Heerey J

DATE:     9 February 1995

PLACE:    Melbourne

EX TEMPORE REASONS FOR JUDGMENT

I think this application falls to be decided in accordance with the general practice where judgments for the payment of money are made against a defendant who then appeals.  It is quite common for a stay to be made pending appeal in circumstances where there might be ground for thinking that if the money is paid out, and the appeal is successful, the money might be difficult or impossible to recover.  Here  there has been no proffering of security and, more importantly, no suggestion that the respondent has actually paid the costs and is out of pocket and is awaiting reimbursement.  If there was I might well have taken a different course.  But the reality with this sort of litigation is that the costs are usually paid when everything is wound up.  So I think it is appropriate to order a stay.
I will order that:

1. The order of the Administrative Appeals Tribunal dated 22 September 1994 that the applicant pay the costs of the proceeding and the tribunal incurred by the respondent in accordance with the tribunal's practice direction dated 20 June 1993 be stayed pending the determination of this matter by the court;

2. The costs of the present application be costs in the appeal.

I certify that this and the  preceding page are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated:

Associate

Appearances

Counsel for the applicant:       Mr R Frazzetto

Solicitor for the applicant:     Australian Government Solicitor

Counsel for the respondent:      Mr M Carey

Solicitor for the respondent:     Slater & Gordon

Date of hearing:                 9 February 1995