Finch v The Heat Group Pty Ltd
[2011] HCATrans 111
[2011] HCATrans 111
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M17 of 2011
B e t w e e n -
JO-ANNE FINCH
Applicant
and
THE HEAT GROUP PTY LTD (ACN 092 941 430)
First Respondent
GILLIAN FRANKLIN
Second Respondent
PETER KADLECIK
Third Respondent
ADAM WHITE
Fourth Respondent
JOHN SIMCOCKS
Fifth Respondent
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 29 APRIL 2011, AT 10.14 AM
Copyright in the High Court of Australia
__________________
MS J. FINCH appeared in person.
MS D.A. SIEMENSMA: If the Court pleases, I appear on behalf of the respondents. (instructed by Minter Ellison)
HIS HONOUR: Yes, thank you.
MS SIEMENSMA: Your Honour, some non‑compliance issues were brought to my instructor’s attention by the Registry late yesterday in terms of margins and footers. I do apologise for any inconvenience caused in that regard.
HIS HONOUR: Yes.
MS SIEMENSMA: Could I indicate that my instructors have, in an effort to remedy those defects, prepared some documents in the proper form. If it assists at this stage I can hand up a copy of that.
HIS HONOUR: Perhaps they can be filed afterwards, I think, if that is convenient, Ms Siemensma?
MS SIEMENSMA: If your Honour pleases.
HIS HONOUR: Ms Finch, can I understand better what documents we all should have for the purpose of this application?
MS FINCH: Yes, your Honour, I ‑ ‑ ‑
HIS HONOUR: Just a moment, your summons is a summons of 20 April, is it not, in which you seek a stay of the costs order?
MS FINCH: Yes, your Honour.
HIS HONOUR: In support of that summons you filed an affidavit sworn on 20 April to which was exhibited a large number of documents. Is that right?
MS FINCH: Yes, your Honour.
HIS HONOUR: Before we go on, Ms Siemensma, is there any objection to my receiving that affidavit?
MS SIEMENSMA: In the interests of efficiency, no, your Honour.
HIS HONOUR: Yes, thank you. In addition to that affidavit, Ms Finch, there is a further affidavit entitled “Supplementary Affidavit of Applicant” which was sworn on 27 April this year together with four exhibits to that affidavit. Is that right?
MS SIEMENSMA: Yes, your Honour.
HIS HONOUR: Again, is there any objection to my receiving that, Ms Siemensma?
MS SIEMENSMA: No, your Honour.
HIS HONOUR: Thank you. In answer to that material there is filed an affidavit of Alishia Maree Prpich sworn on 28 April 2011 together with exhibits to that. Ms Finch, do you have any objection to my receiving that affidavit?
MS FINCH: No, I do not, your Honour.
HIS HONOUR: Yes. That is the material, I think – to that I should add there is also a respondents’ written outline of submissions of 28 April which I take it you have, Ms Finch, do you?
MS FINCH: Yes, I do.
HIS HONOUR: Yes. That is the material that I have before me. You should take it, Ms Finch, that I am familiar with that material and its contents. It, I think, may be an efficient means of proceeding with the application if sooner rather than later you come to grapple with the points that the respondents make in their outline of submissions as to why you should not have a stay, but what is it you want to say in support of your application?
MS FINCH: Yes, your Honour, thank you. Firstly, I just wanted to advise the Court this is my friend, Mrs Tiziana Di Pierro, just so that the Court is aware of my friend here, and she sometimes helps me with my exhibits and so on.
HIS HONOUR: Yes.
MS FINCH: The second thing I just wanted to mention is that in my affidavits - the first one I actually made some errors with regards to years and I sincerely apologise. Is that – would you like me ‑ ‑ ‑
HIS HONOUR: I do not think anything is going to turn particularly on those matters. I may be wrong but I am not conscious of anything turning specially on those matters.
MS FINCH: It was just a couple of days – the years. It was the dates.
HIS HONOUR: Yes.
MS FINCH: Yes, thank you. The third thing I just wanted to mention before I go into the defence and the justification of the stay that I believe should be – the order should be stayed - is that I wanted to mention that when I have highlighted errors in regards to her Honour Judge Harbison in the Tribunal that it does sadden me to do so and I only do so because the errors are actually having a snowball effect and affecting my life dramatically. I just wanted that to be known that it is out of sadness that I do so, that there is a reason that I do.
HIS HONOUR: Yes.
MS FINCH: Then in regards to the respondents’ submissions that I received – I actually received them at 6.05 last night so I did not have a great amount of time to respond to them but I have made some responses. In regards to the Court of Appeal refusal which was mentioned in paragraph 1 I just wanted to say that the Court of Appeal did dismiss my application for appeal of the cost order.
However, the Court of Appeal did highlight that there was an error of law in regards to the adjournment refusal request at the cost hearing and the Court of Appeal also asked me two questions before they said they were prepared to make the decision. One was, would I apply to the High Court of Australia to have the cost order stayed, which I am doing today, and I said, yes. The second one was would I appeal the decision to the High Court of Australia if they refused the leave to appeal and I said yes. Those two questions were put to me before the decision was made.
Another thing is in regards to the exceptional circumstances to warrant the stay I believe that my initial affidavit does explain the circumstances which I believe do warrant the stay in that I have put forward 11 questions of appeal which are said to arise in the leave to appeal application to the honourable High Court of Australia. The cost order is based on findings that are inconsistent with the evidence and it is a significant amount of approximately $200,000. It is a serious deterrent to the public to come forward with their claims, in my opinion, and hence it is a potentially significant risk to life of the future victims of workplace incidents.
I will also face financial ruin and I will potentially lose my home. I have two children, with one of my children being classed as disabled, the child that was conceived during the workplace incidents. I believe that the cost order does not affect my right to appeal – sorry, in regards to the respondents’ comment that the cost order does not affect my right to appeal, I believe that it does in fact, because I will face financial ruin, if I am to pay this cost order, and this will affect my appeal continuance. For example, if I am successful with my appeal application, yet I am in financial ruin, I will not be in a position to hire a legal team to conduct the appeal, so it does actually have an effect on the appeal.
In regards to the properties, it is suggested that I have – in the costs order amount the respondents have provided inaccurate evidence in the sworn affidavits once again. I have experienced this incident before. I am not the proprietor of several properties. In regards to the affidavit of Alishia Marie Prpich in paragraph 10, 130 Charles Street, Abbotsford, I do not and I have not at any time owned 130 Charles Street, Abbotsford. That is incorrect information. I shared the house with two other flatmates. I do not know who the actual owner is. It was a rental property, and it was through an estate agent. I paid rent, as did the other two people sharing the home, and I believe the estate agent was Biggin and Scott in Richmond.
54A Clifton Street, Northcote, I am a shared owner of the home. I share that home with my husband. This is where we are currently residing and the home we bought to live with with our children. It has a mortgage, and I do not own any properties outright at all.
The respondents have quoted their legal fees in excess of $300,000 publicly via the Internet, whilst if this is correct, the costs have not been quantified. I agree that they have not. However, if the order was to go ahead, I would obviously request that they would be taxed. But the cost order is potentially around $200,000 regardless if it is taxed. I think that $200,000 is not a ridiculous amount. It is potentially around that amount, so it is significant. It is not $10,000. $200,000 means I will lose my home. There is no question of a doubt. I believe I will definitely lose my home.
In regards to the leave to appeal being four months late, I highlighted very valid reasons in the first affidavit of that. Firstly, I did not receive counsel’s advice for the leave to appeal application until 27 days after the decision even though I had requested it numerous times. I was not advised at any time that there was a timeframe, even though I had asked. The evidence of this is exhibit 27 and 28.
I hired new counsel due to counsel incompetence at the appeal, which was mentioned by the justices at the Court of Appeal in the reasons and I speak of this in paragraph 41 of my affidavit. I had also sent a letter to the President of VCAT because my understanding was that his Honour could actually reopen a case and I was waiting for his Honour’s decision, which I mention in paragraph 43 of my affidavit.
I requested and was waiting the advice of counsel that I had hired for the costs hearing who were very busy attending to the cost hearing at that time also, which is mentioned in paragraph 42 and 57 of my affidavit. There were delays with this advice and a meeting had still not taken place in February 2011 and hence I became somewhat frustrated waiting and waiting and I lodged my application at the High Court of Australia after my husband found I could self‑represent myself. This is mentioned in paragraph 58.
In regards to the High Court application after the cost order which the respondents have made - and I do not understand why because I clearly gave evidence in my sworn affidavit which verified - I wish to appeal the Court of Appeal decision prior to any cost order against me and hence this is an attempt to mislead the court - I did not, when evidence verifies that I actually had, and this is mentioned in paragraph 63(b) and is also evidence in exhibit 27 that I did wish to come to the High Court of Australia prior to any cost orders. It is not related to the cost order.
In regards that there is no prospect of my application for special leave to appeal being accepted, the honourable High Court of Australia allow me the right as a human being to have my application heard and it is paramount that the judiciary system completes the appeal process as my right. Respondent counsel is not privileged to my arguments submitted to the High Court of Australia and I believe is not in a position to authoritatively make comments regarding the outcome of my appeal. This is a matter for the High Court of Australia to decide upon and not respondent counsel.
In regards to incompetent counsel at the appeal not being an error of law, which is mentioned in paragraph 9, incompetent counsel is only one consideration in my 11 questions said to arise. There were many others that I believe do give rise to an error of law based on my research of other case law before the High Court of Australia. Incompetent counsel is considered as reasons for appeal.
In Jowett v Kelly in 2008, an appellate court intervened when evidence suggested the person was incompetently represented. In Stevens v McCallum in 2006, mention is made that if counsel incompetence or conduct either has or may have caused or contributed to a denial of due process, deprived a person of a fair trial, it is sufficient for a person to require the setting aside of proceedings and the person need not have to show that the counsel’s conduct affected the result. In Pantano v The Queen in 1989, it was also said that there are some cases in which it is expedient, in the interest of justice, to allow a point to be raised on appeal which was not argued in the court below.
In regard to the respondents’ comments that it is no significance of interest of justice in questions of public importance, I strongly disagree with that. In the interest of justice, the cost order, as mentioned, is potentially $200,000. It is based on findings that are inconsistent with evidence in regards to my credibility and the respondents’credibility, mentioned in paragraph 75 of my affidavit.
Whilst the company are insured with Chubb Insurance, I am a mother with two children. One of my children is also, as I said, classed as disabled. I am not able to attend to work due to what numerous independent psychiatrists have reported are injuries due to these workplace incidents. I cannot work at the moment. The company have not offered any return to work plan. In fact, it terminated my employment after the last hearing. I have been advised that I am not entitled to any money after nine year’s employment. Long service I gave to the company for nine years – I have been told I am not entitled to any money. So I have not received any entitlements at all. I have just been terminated.
The company has publicly humiliated me with press releases that are actually inconsistent with the evidence, meaning I am certainly totally unemployable now in future in any event, even if I were well enough to work. I am unemployable, I believe, due to these I think it is five articles that have been publicly released. They are inconsistent with evidence.
I live each day with this unjust public humiliation which affects my life enormously. It affects how I am as a wife, a mother and as a friend. I worry about my children – sorry – and what they will face in future with this incorrect humiliation I have carrying on my back. I also live with the burden of what I stood up for – being that the public’s interest of future victims has now, in fact, deterred them from coming forward and I have to live with that every day, also.
In regards to the public importance, the role of the Tribunal – it is important that claimants are not deterred from seeking redress from the prospects of a significant cost order against them. I believe the Tribunal should not allow the threat of costs against Victorians and deter citizens from participating in decisions about their future. The Tribunal is intended to be accessible for the public of our State and they should not be frightened when they would hear about these sorts of costs orders of $200,000 that are made based on adverse findings that actually do not have fact.
I believe the cost order is direct conflict with what the Tribunal is attempting to achieve and was designed for, which is to protect their rights and encourage freedom of speech against any injustice or fairness. In regards to the interest of the public, my motivation for the hearing was always included in the public’s interest and the rule of law and where a significant number of members of the public, I believe, would share my stance. I pursued forward at all times with my case, not just for myself, but also for them.
I told my doctor – and I have told him many times – that when I was going through the hearing process there were lots of government advisory lines but there were not victims to speak with. He said to me one day what do you want to do when this is all over and I said well, I want to turn a bad thing into a good thing and I want to help other victims. I want to give my phone number to government advisory lines so victims can call me because there are many things that you learn going through the process that government authorities’ advisory lines do not necessarily tell you. You learn things as an individual going through them and I wanted to help others.
Due to their cost order now and the dismissal of my claims, which I believe is an erroneous decision, this has not only affected my wish to do so and help others, but it has also affected theirs – the future victims. The cost order, in my view, is a significant injustice – not just for me and my family, but also, as I said, what it will do to the other future victims of workplace incidents. As we know, as I mentioned in my affidavit in paragraph 70, victims of unlawful and unjust workplace behaviour can in fact, and do, take their own lives, for example, the woman that jumped from the fourth‑storey level car park.
As mentioned also, I believe if this is not corrected and I am allowed to appeal without the cost order the potential devastating effects of the decisions are five-fold. Initially, the order is encouraging respondents of such claims to provide misleading or false evidence which I have proven happened in my hearing. The order is encouraging employers to commence or continue with this type of behaviour. The order is discouraging future victims to bring their claims forward in future with threats of what may happen to them as has happened to me.
The order is in direct conflict with what the government authorities are promoting to the public which is to improve workplaces and employees’ health and wellbeing. The order is creating, therefore, a significant risk to life as we know that the victims can and often do take their own lives if they feel there is nowhere to turn. I believe that is of the most serious importance of all.
The public conducted a poll, as mentioned in exhibit number 40, and they clearly do not want to see victims coming forward with claims receiving significant cost orders against them, particularly when their evidence was strong, the cost order was on the findings of credibility that are inconsistent with the facts and the evidence.
In regards to my claims being rejected through two tiers of jurisdictional process, as highlighted in my affidavit in paragraphs 34 to 37, this was due to counsel incompetence and not through a weakness of the facts, the evidence or the strength of my case. In regards to the respondents not benefiting from the orders, these respondents are, as I mentioned, insured with Chubb Insurance. The money is not directly owed to the respondents; it is to an insurance company. The company has been in operation now for 10 years, it was established in 2000. They are quite a relatively large organisation which her Honour mentions in ruling 196. They employ around 95 people and actually boast a turnover of around $70 million. This is in Ms Franklin’s statement - paragraph 14.
Neither they, nor the insurer, appear to be faced with financial ruin if they do not receive this cost order immediately, as I am, and hence would be far less inconvenienced than I am. The application for leave to appeal will be determined, no doubt, in the not too distant future. It does not affect the respondents if they wait for my rights of the decision to appeal the initial decision, rather than wanting the money immediately when it is actually for an insurer, not for themselves.
In regards to the respondents’ proposition that I pay them the money and then if am successful with the appeal they can pay me back, I feel that this is a totally impractical proposition to suggest, nor is it acceptable. If I were to pay this order I would have to declare bankruptcy and I would lose my home amongst other things. Hence, even if the respondents were to repay the money in the event my appeal was successful, it would not - if I were to buy another home in the future, for example, I would lose a lot of money in stamp duty and the like.
If I declare bankruptcy I actually cannot buy a house for seven years, so I would have to pay rent for seven years. It is very difficult to – I know this is probably something that is a minor thing, but it is important as a mother, it is very difficult to get into kindergartens in Melbourne; they are all very full, waiting lists are very long, I would be unlikely to get both my children into a kindergarten in a new area.
My son is currently on a waiting list and has been for nearly 12 months and hence this would jeopardise my children’s preschool education. My daughter, who I mention is disabled, she has brain difficulties and she has got speech difficulties as well. Her teachers at kindergarten are working with her and are professional in this regard. They now understand my daughter’s condition, it has been a hard process for them to understand; I have had to go and explain it to them, what they need to do help her in kindergarten, and they are assisting her with her difficulties along with a professional.
If I had to change to a different kinder I would need to go through all these difficulties again and likewise this would affect my daughter’s learning. I would have to replace the home that my husband and I purchased for our children, which we love. We love our home. We took a lot of time to choose it. We based it on location, kindergartens, et cetera. I do not have a car, we cannot afford a second car so I do not have a car during the week; I walk across to the kinder. So this is many things about the home; it is not just about a home, it is our home. No one could replace the significant stress and upset we would have faced if we had to sell our home and face bankruptcy and then to say, we will pay you the money back. I do not think that is going to replace everything that we would have suffered.
My husband, who is a part owner of the home, and our children, would also be faced with serious distress. This is not just about me; this is about my innocent children and my husband. I believe it is absurd to suggest I should pay the order and then be put in a position of having to sell everything and make significant changes to the lives of my husband and to my children, then the respondents will pay it back if I am successful with my appeal. In my opinion, this is totally unacceptable and it is an inhumane proposition, particularly even more so when innocent children are involved.
In summary, it is with all due respect that I have raised all the areas in the exhibits, and I speak about counsel incompetence, and it is with respect that I talk of these things. However, as I said before, they are snowballing and really affecting my life quite dramatically.
The legal system is in place to protect the rights of all Australians. The honourable High Court of Australia permits consideration of my questions that are said to arise. Without this protection for all of us, I wonder what sort of world we would live in and what sort of respect and dignity we would have for each other. I believe I should be permitted to exhaust all my lines of appeal prior to the cost order enforcements which
goes in line with the principles of fairness and in the interest of my innocent children and also, as I mentioned, the serious matter of public importance.
In closing, I refer to the case that was mentioned in my affidavit which was Craig v South Australia whereby Justice Deane held if such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or at least in some circumstances to make an erroneous finding or reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority of powers. Such an error of law is a jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.
I just believe that I should be allowed to complete the appeal process before any cost order due to the cost order being relevant to questions of law that I have raised in my appeal to the High Court of Australia and I thank the honourable High Court of Australia for your consideration, your Honour.
HIS HONOUR: Yes, thank you, Ms Finch. Ms Siemensma, I have, of course, read your written outline of submissions. Do you seek to add to what has been said there?
MS SIEMENSMA: Yes, just briefly, your Honour, just in relation to the issue of the applicant’s future financial position. In my submission, what is put at its highest is that it is a hypothetical, a potential position that she may face. Her material refers to diminishing her chances of using her financial resources, so the situation is such that her financial position would be prejudiced and that is as high as she puts it and, in my submission, the Court should not rule on a hypothetical. If it were the case, and your Honour could not be satisfied of this on the present material, but if it were the case that a sequestration application arose in the future, then a stay could be made before the judge that was to hear the sequestration order, but I say we are not at the point. The applicant ‑ ‑ ‑
HIS HONOUR: The costs have not yet been taxed?
MS SIEMENSMA: That is so.
HIS HONOUR: Yes.
MS SIEMENSMA: In respect of the properties, the property searches reveal that somebody with the applicant’s identical name of her current and her former residential address own properties in Victoria and, in my submission, the right of appeal would endure even if bankruptcy proceedings were to proceed. It does not necessarily bring an end to the application for special leave.
HIS HONOUR: So it would be expected, would it not, that a trustee in bankruptcy would be unwilling to prosecute the application? The real world is that the trustee would not prosecute it.
MS SIEMENSMA: Yes, unless it were a matter under section 60(4) of the Bankruptcy Act, one being a proceeding where the applicant could continue in her own name. I accept that the trustee in bankruptcy would have to elect to proceed, but I say we are not at that point yet because it is all a hypothetical about what may happen in the future. Certainly, on the evidence ‑ ‑ ‑
HIS HONOUR: Well, the steps that intervene are: one, tax the costs; two, apply for sequestration; three, resist an application for adjournment of the bankruptcy application pending hearing and determination of the application for leave.
MS SIEMENSMA: That is so, your Honour.
HIS HONOUR: Have you any information that would suggest how long preparation and taxation of a bill of costs would likely take?
MS SIEMENSMA: I am afraid not, no, your Honour.
HIS HONOUR: No, that is fine.
MS SIEMENSMA: Thank you.
HIS HONOUR: Yes, thank you, Ms Siemensma. Yes, Ms Finch, is there anything you want to say in answer to what Ms Siemensma has said?
MS FINCH: Just that I do own property, as I mentioned, your Honour, but I do not own any property outright. As I mentioned in my affidavit, and it is accurate information, I swore it in, I have paid around 180,000 in legal fees so far and I still owe 110. I think that respondent counsel saying it is hypothetical that I will not go bankrupt is inaccurate. I will almost certainly have to face bankruptcy and lose my home. I would not say that if it was not legitimate, and I do not know if they think I have lots of money but I have paid 180,000 so far and I have lost money on appeals with counsel incompetence.
I do not know where I will get money from to pay this order. I will face bankruptcy and I will lose my house and that is possible, you know, I have spent weeks crying about this. I would not spend time stressing about
it if it was not a possibility. It is not a hypothetical, it is almost a certainty. Thank you, your Honour.
HIS HONOUR: Yes, thank you.
The first respondent, The Heat Group Pty Ltd, is a wholesale distributor of cosmetics and personal care items. The applicant was an employee of The Heat Group, as were the second, third, fourth and fifth respondents at the times relevant to this matter.
The applicant brought proceedings in the Victorian Civil and Administrative Tribunal against The Heat Group and against those employees of The Heat Group who are now the second to fifth respondents making a number of claims under the Equal Opportunity Act 1995 (Vic). Put shortly, she alleged that The Heat Group had discriminated against her on the grounds of her sex, because she was ill, and because she was pregnant. She alleged that in the course of her employment she was sexually harassed. She alleged that when she complained to her superiors about discrimination The Heat Group victimised her because she had made that complaint.
After a 20‑day hearing between 4 May 2010 and 9 June 2010, the Tribunal, Judge Harbison, Vice‑President, made an order on 29 June 2010 dismissing the applicant’s complaint. Some months later, on 31 January 2011, the Tribunal ordered the applicant to pay two-thirds of the respondents’ taxed costs of the proceedings in the Tribunal.
Before the costs order had been made the applicant had applied, unsuccessfully, for leave to appeal to the Court of Appeal of the Supreme Court of Victoria against the Tribunal’s order dismissing her claim. On 5 October 2010, the Court of Appeal - Chief Justice Warren and Justice Mandie - refused leave to appeal on the footing that the grounds of appeal which had been identified in the course of argument did not “identify any question or questions of law that are raised by the Tribunal’s decision”. The Court of Appeal said in addition the court did not “think that the Tribunal’s decision is attended by sufficient doubt as would justify a grant of leave to appeal”.
On 4 March 2011, well outside the time fixed for making application for special leave, the applicant filed in this Court an application for special leave to appeal from the whole of the judgment of the Court of Appeal given on 5 October 2010. The applicant says that there are valid reasons which explain why the application was made so long after the time fixed for making application for special leave. It is convenient for present purposes to assume, without deciding, that nothing turns on any question of delay. The application for special leave could not and did not seek to challenge the Tribunal’s costs orders which were orders that had not been made before the Court of Appeal’s refusal of leave to appeal, which is the central subject matter of the application for special leave.
Either before or after filing her application for special leave to appeal, and it matters not which, the applicant sought leave to appeal to the Court of Appeal against the orders for costs that had been made by the Tribunal. On 8 April 2011, the Court of Appeal, constituted on this occasion by Justices Tate and Hargrave, dismissed the application for leave to appeal against the costs orders, ordered that the applicant pay the respondents’ costs of and incidental to the application for leave and directed that there be a stay of the orders made by Judge Harbison on 31 January 2011 for 28 days from the day on which the Court of Appeal made its orders, that is 8 April 2011.
By summons filed on 20 April 2011, the applicant now seeks a further stay of the Tribunal’s costs orders. She contends that unless enforcement of the costs orders is stayed she will be unable to prosecute her application for special leave to appeal against the Court of Appeal’s refusal of leave to appeal against the substantive orders made by the Tribunal.
The only application for special leave to appeal that is pending in this Court at the moment is the application which seeks to challenge the orders of the Court of Appeal refusing leave to appeal from the Tribunal’s dismissal of the applicant’s substantive claims. The applicant foreshadows her intention to seek special leave to appeal against the orders made on 8 April 2011 refusing her leave to appeal against the costs orders made by the Tribunal, but that application for special leave to appeal has not yet been filed.
For the purposes of this application, it is convenient to assume, again without deciding, that the costs orders made by the Tribunal could be intercepted if special leave to appeal to this Court were granted in respect of the Court of Appeal’s refusal of leave to appeal against the substantive orders made by the Tribunal and if, further, an ensuing appeal against the Court of Appeal’s refusal of leave to appeal against those substantive orders were to succeed. It is also convenient to assume, yet again without deciding, that this Court’s jurisdiction to preserve the subject matter of litigation would, in these circumstances, extend to granting a stay of the costs orders that were made by the Tribunal.
It is necessary to recall that, as Justice Brennan said in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited [No 1] (1986) 161 CLR 681, at 864:
A stay to preserve the subject‑matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.
If an order for stay is made, the party subject to that stay is kept out of the benefit of an order which that party has obtained. Appeal, even as of right, does not automatically stay the operation of an order that has been made by the court or tribunal against whose orders an appeal is brought. The position is all the stronger where, as in this Court, there is no right of appeal but only a right to seek special leave to appeal.
In Jennings Construction Justice Brennan pointed, (1986) 161 CLR at 685, to four relevant considerations bearing upon whether a stay should be granted in a case in which a stay was required to preserve the subject matter of the litigation. Those four considerations were whether there is a substantial prospect that special leave to appeal will be granted, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending, whether the grant of a stay will cause loss to the respondent and where the balance of convenience lies.
Those are considerations that are relevant where a stay is necessary to preserve the subject matter of the litigation. That is not this case. As the respondents rightly submitted, the application for special leave, and any ensuing appeal to this Court, could be heard and relief of the kind sought by the applicant could be granted if a stay is not now allowed.
In this matter the applicant says that if the costs order is enforced she will likely become bankrupt and, in addition, she and her family will suffer considerable personal hardship in consequence. She submits that if bankrupt she will not be able to pursue her application for special leave to appeal, but those facts, if established, would not demonstrate that a stay is necessary to preserve the subject matter of the application for special leave to appeal. They would show no more than that if a stay is not granted and if bankruptcy intervened the applicant would be unable to prosecute that application.
The quantum of the costs for which the applicant is liable under the Tribunal’s order for costs has not yet been fixed. There is, therefore, no liquidated claim that remains unsatisfied that could now found the institution of bankruptcy proceedings. The respondents point to evidence suggesting that there are several pieces of land, apparently held in the name of the applicant, and submit that this is a fact which at least throws doubt upon the applicant’s assertion that bankruptcy would likely follow if a stay is not granted. The applicant acknowledges that she has an interest in her matrimonial home but, as I understood it, in the course of argument denied, or at least did not acknowledge, that she has any interest in other land in which a person of the same name is recorded as registered proprietor.
Be this as it may, a stay is, in my opinion, not necessary to preserve the subject matter of the application now pending in this Court. The case is, in my opinion, no different in any relevant respect from that considered by Justice Brennan in Sali v SPC Limited (1993) 67 ALJR 515. There, as here, application was made to stay an order for costs that had been made (on that occasion in the court against whose orders application was made for special leave to appeal). As Justice Brennan said in Sali (1993) 67 ALJR 515 at 516:
It seems to me that whether or not a stay is granted in respect of the enforcement of the costs order, that right of appeal –
I interpolate the right of the applicant in that case to appeal to the Appeal Division of the Supreme Court of Victoria –
does not stand in need of any preservation. Whether or not a stay order is made, the application for special leave can be considered and an appeal can be heard and determined. If a stay is refused, there will be no embarrassment to the making of any appropriate order if the applicant should succeed either on the application for special leave to appeal or on the appeal. It therefore appears to me that the application is not one which attracts the operation of the jurisdiction to grant a stay.
What was said in Sali applies with equal force in this case.
I should add, however, that if regard should nonetheless be had to considerations of the kind mentioned by Justice Brennan in the Jennings Construction Case the prospects of the applicant succeeding in her application for special leave to appeal to this Court do not appear to me to be such as would warrant the grant of the stay she now seeks.
As the applicant pointed out in the course of argument, the case in the Tribunal was decided as it was in at least several important respects by the Tribunal acting upon the view that it formed of the credibility of the witnesses who gave evidence at the hearing before it. The complaints she now makes are not of a kind that suggest that there arises any point of public importance, whether because of its general application or otherwise, or that this is a matter in which it would be in the interests of justice generally or in the particular case that there be a grant of special leave.
It follows that questions of balance of convenience do not fall for consideration in the circumstances of the present case. The application is dismissed. Yes, Ms Siemensma?
MS SIEMENSMA: Your Honour, the respondents seek costs.
HIS HONOUR: Yes. Are you able to resist an order for costs, Ms Finch?
MS FINCH: I would just think it should be considered that there was strong evidence provided that verified the claims in serious instances were unarguably proven in the hearing, hence the issues that I have had and took to the High Court of Australia. There appear to have been issues with counsel incompetence, the leave to appeal which caused the costs hearing. The costs hearing, in my view, should not have eventuated if there was not counsel incompetence at the Court of Appeal hearing, and the concerns in the application today did have evidence to verify them.
I provided evidence that I believed were legitimate concerns for a possible consideration of a stay. I do not think - it had no reason to bring it forward to ask for consideration and the interests of the application was also made in the interests of the public as well, not only just myself, your Honour. Thank you.
HIS HONOUR: Yes. The summons of 20 April 2011 will be dismissed with costs.
Adjourn the Court.
AT 11.06 AM THE MATTER WAS CONCLUDED
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