Commonwealth of Australia v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees Esber, F.

[1991] FCA 658

IN THE FEDERAL COURT OF AUSTRALIA ) NO. QG 40 of 1991

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BETWEEN: COMMONWEALTH OF AUSTRALIA

First Applicant

AND:  COMMISSION FOR THE SAFETY, REHABILITATION
AND COMPENSATION OF COMMONWEALTH EMPLOYEES

Second Applicant

AND :  FARAGE ESBER

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	8 APRIL 1991
WHERE MADE:	BR1 SBANE
THE COURT ORDERS THAT:

1.   The appellants' motion for leave to amend be adjourned for consideration by a Full Court.

2.    The implementation of the decision, the subject of the appeal, dated 20 February 1991 be stayed until the determination of this appeal, on condition that interest be paid as set out in orders 3 and 4.

3.    The rate of interest be 15% and run from today.

4. The appellants file an affidavit by an authorised officer no later than Tuesday 9 April 1991 undertaking to comply with the condition; if such affidavit is not filed, the stay will not take effect.

-	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

5.    In the event of non-compliance with the condition, the sum mentioned in the decision of $199,742 must be paid to the respondent on 10 April 1991.

6.  The costs of and incidental to today's hearing be costs in the proceedings.

NOTE :

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No. QG 40 of 1991

IN THE FEDERAL COURT OF AUSTRALIA ) i..:

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QUEENSLAND DISTRICT REGISTRY	1	L'..	..
GENERAL DIVISION	1	I:;
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BETWEEN: C A -

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AND: COMMISSION FOR THE SAFETY, REHABILITATION p 1 8 .~,.

AND COMPENSATION OF COMMONWEALTH EMPLOYEES	6 i
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AND: FARAGE ESBER	L.
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Respondent	2	r
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CORAM: PINCUS J.

PLACE: BRISBANE

W: 8 APRIL 1991

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EX TEMF'ORE REASONS FOR JUDGMENT	.. .:
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An appeal is pending against a decision of the Administrative Appeals Tribunal constituted by three members,

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of whom one is a judge of the Family Court. Because of the

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Tribunal's composition, the appellate jurisdiction must be

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exercised by a Full Court (s.44(3)(c) of the Administrative	v-:.	r : ~
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ADDeals Tribunal Act 1975).	;\.:
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It appears that the appeal can, perhaps, be heard in	p: 1.;-	, i
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the next sittings, which is due to begin in a fortnight's	;	:	L	.
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time. The decision against which the appeal is brought was to	\. .' !:
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the effect that the respondent M r Esber is entitled to a large	,.L:
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sum under the Com~ensation (Commonwealth Government Emploveesl	:..:p
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Act 1971. The appellants have applied today for leave	>
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substantially to amend the notice of appeal and for a stay.	i ..
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The respondent has also filed a notice of motion in which is sought an order that the Commonwealth of Australia pay forthwith a certain part of the large sum and that the balance be invested.

Under the terms of 0.53, there is no need for leave

to amend if one files a supplementary notice before the date

of the directions hearing (0.53 r.l2(1) ) that date was 25

March 1991. No supplementary notice was filed. The Court is also given power to amend a notice of appeal, by 0.53 r . 3 (3) . In my opinion the expression "the Court" in this rule means, in the context, the Court exercising appellate jurisdiction. The scheme of 0.53 seems to be that where that is not meant,

the expression "the Court or a Judge" is used: see r.7, 14,

15 and 19. In 0.52, one finds a similar variation in

expression.

Although perhaps an inconvenient result', the better

view appears to be that the Full Court must exercise this

jurisdiction. I have noted the decision of Toohey J. in

V. & (1982) 40 A.L.R. 189, the result of which is consistent

with the view I have expressed. I also note the remarks of French J. in.Trade Practices Commission v. Manfal Ptv. Limited (unreported, 18 December 1990) especially at p.5.

It is, on the other hand, clear that a stay may be

ordered1 see e.44A(2) of Che Administrative Ameals Tribunal

1975, which gives the relevant power to the Court or a Judge. A suggestion was made that a stay could be ordered, on the basis that the Commonwealth undertook, in the special circumstances of this case, to pay interest in the meantime. The purpose of that suggestion was to avoid the inconvenience of paying the money into and out of Court. That undertaking has not been given. I propose to order a stay, -on condition that interest is paid. It will be necessary for the appellants to file an affidavit by an authorised officer no later than tomorrow, undertaking to comply with the condition. If that affidavit is not filed then the stay will not take effect and the money must be paid in full to the respondent, Mr. Esber. The rate of interest will be 15 per cent and the interest will run from today.

It will therefore be ordered, as to the appellant's motion for leave to amend, that it be adjourned for consideration by a Full Court. The implementation of the decision dated 20 February 1991, which is the subject of the appeal, is to be stayed on the condition which I have

mentioned. In the event of non-compliance with the condition,

then the sum mentioned in the decision, namely, $199,742, must be paid to the respondent on 10 April 1991. The costs of today will be costs in the proceedings.

I certify that this and the two preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

Associate