GARTH CARTER v. GEOFF LAYTON AND CO. PTY. LTD. No. G118 of 1990 FED No. 498 Number of pages - 4 Practice and Procedure (1993) 43 FCR 392
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION Cooper J(1)
CATCHWORDS
Practice and procedure - jurisdiction - power to stay operation of Full Court decision - power to stay execution of the order under a writ of fieri facias - application for special leave to appeal to High Court - threshold question - whether single judge has power to stay an order of the Full Court pending determination of the special leave application - exercise of the power - whether renders right of appeal nugatory - whether necessary extraordinary circumstances exist.
Smith, Hogg and Co. Ltd. v. The Black Sea and Baltic General Insurance Co. Ltd. (1940) 162 LT 11 (CA)
HEARING
BRISBANE, 22 July, 1993
#DATE 27:7:1993
Counsel for the Applicant: Mr. D. Jackson QC
Solicitors for the Applicant: Hopgood and Ganim
The Respondent apeared in person.
ORDER
The Court orders that:
1. That the application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the
JUDGE1
COOPER J This is an application to stay a judgment of the Full Court of this Court given on 21 June, 1993 whereby the court ordered in part that judgment be entered for the applicant in the originating application (the respondent to this application) for $106,329.00 together with costs including reserved costs. Additionally, it is sought that execution of the order under a writ of fieri facias obtained by the applicant be stayed. The stay is sought until the determination of an application for special leave to appeal against the judgment of the Full Court, which application has been filed in the High Court of Australia, and the determination of the appeal if leave is granted.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Carter, G. v. Geoff Layton & Co. P/L [1993] FCA 498 ((1993) 43 FCR 392)
Case
[1993] FCA 498
Decision Date
CaseChat Overview and Summary
The matter before the court involved Comcare as the appellant and Mr A'Hearn as the respondent. The dispute revolved around the procedural aspects of judicial review, specifically concerning the jurisdiction of a single judge to stay the execution of a Full Court's decision pending the determination of an application for special leave to appeal to the High Court. The case was heard in the Federal Court of Australia. The primary issue was whether a single judge has the inherent jurisdiction to stay an order of the Full Court while a special leave application is pending. Additionally, the court considered whether such a stay would render the right of appeal nugatory and whether extraordinary circumstances justified the exercise of this power.
The court examined the legal precedents and principles that govern the inherent jurisdiction of a single judge to stay execution of a Full Court's order. It acknowledged the Full Court's authority in making decisions on matters of law and the importance of the right of appeal. The court also weighed the potential consequences of allowing a single judge to stay the Full Court's order, including the impact on the appellant's right to appeal and the necessity of extraordinary circumstances to warrant such a stay. Ultimately, the court concluded that while the inherent jurisdiction of a single judge to stay execution of a Full Court order exists, it should be exercised sparingly and only in cases of extraordinary circumstances. In this instance, the court found that the criteria for such a stay were not met.
The Federal Court dismissed the application, holding that the single judge did not have the power to stay the execution of the Full Court's order pending the determination of the special leave application. The court emphasised the importance of adhering to established judicial processes and the need to prevent the right of appeal from becoming meaningless. As a result, the application for a stay was dismissed, and the Full Court's decision remained in effect. The orders reflect the court's decision, with no stay being granted and the appeal process continuing as per the established rules and procedures.
Orders
Orders of the court
The Court orders that:
1. That the application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the