George v Fletcher (Trustee) (No 3) - [2012] FCAFC 188

FEDERAL COURT OF AUSTRALIA
George v Fletcher (Trustee) (No 3) [2012] FCAFC 188

Citation: George v Fletcher (Trustee) (No 3) [2012] FCAFC 188

Appeal from: Fletcher v George & Ors [2011] FMCA 553

Parties: LAUREN KAY GEORGE v WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE, DR PETER IRONSIDE PTY LTD (ACN 008 126 387), PETER DOUGLAS IRONSIDE and NATIONAL AUSTRALIA BANK

File number: QUD 192 of 2011

Judges: SIOPIS, JESSUP AND KATZMANN JJ

Date of judgment: 19 December 2012

Catchwords: PRACTICE AND PROCEDURE – Application for stay of orders pending determination of special leave application to the High Court – relevant principles

Cases cited: George v Fletcher (Trustee) [2012] FCAFC 148
George v Fletcher (Trustee) (No 2) [2011] FCA 1033
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia [2003] FCAFC 82
Rinehart v Welker (2012) 285 ALR 191

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 7

Solicitor for the Appellant: Self-represented

Solicitor for the First Respondent: Holman Webb Lawyers

Counsel for the Second and Third Respondents: Mr RM Galloway

Solicitor for the Second and Third Respondents: Bell Dixon Butler Lawyers

Counsel for the Fourth Respondent: Mr DJ Morgan

Solicitor for the Fourth Respondent: Thynne & Macartney Solicitors

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 192 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
LAUREN KAY GEORGE
Appellant

AND:
WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE
First Respondent

DR PETER IRONSIDE PTY LTD (ACN 008 126 387)
Second Respondent

PETER DOUGLAS IRONSIDE
Third Respondent

NATIONAL AUSTRALIA BANK
Fourth Respondent

JUDGE:

SIOPIS, JESSUP AND KATZMANN JJ

DATE OF ORDER:

19 DECEMBER 2012

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO BRISBANE)

THE COURT ORDERS THAT:
1.The appellant’s application for a stay of Orders 1, 3, 4 and 5 pending the determination of an application for special leave to the High Court be dismissed.
2.The appellant pay the respondents’ costs of this application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 192 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
LAUREN KAY GEORGE
Appellant

AND:
WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE
First Respondent

DR PETER IRONSIDE PTY LTD (ACN 008 126 387)
Second Respondent

PETER DOUGLAS IRONSIDE
Third Respondent

NATIONAL AUSTRALIA BANK
Fourth Respondent

JUDGE:

SIOPIS, JESSUP AND KATZMANN JJ

DATE:

19 DECEMBER 2012

PLACE:

SYDNEY (VIA VIDEO LINK TO BRISBANE)

REASONS FOR JUDGMENT

Lauren George was substantially unsuccessful in this proceeding (George v Fletcher (Trustee) [2012] FCAFC 148) and has since filed an application for special leave to the High Court. Ms George applied for a stay of the costs orders. Later she applied for a stay of all orders…

Grounds of appeal

[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

Case: [2012] FCAFC 188
Decision Date: 19 December 2012

CaseChat Overview and Summary

The case of George v Fletcher (Trustee) (No 3) involved the appellant, George, applying for a stay of certain orders pending the determination of an application for special leave to appeal to the High Court. The respondent, Fletcher (as trustee), opposed the application. The case was heard in the Federal Court of Australia. The core dispute revolved around the enforcement of specific orders and whether these should be stayed while the appellant pursued an appeal to the High Court.

The legal issues before the court centred on the appropriate criteria for granting a stay of orders pending the determination of an application for special leave to appeal. The court was tasked with determining whether the appellant had demonstrated that exceptional circumstances existed to warrant such a stay, considering the balance of convenience and the likelihood of success on the appeal. The principles guiding the court's decision-making process were rooted in established case law regarding the discretion of the court to grant a stay.

In dismissing the application for a stay, the court found that the appellant had not shown exceptional circumstances warranting a departure from the usual practice of enforcing orders pending appeal. The court held that the balance of convenience favoured enforcing the orders and that there was no significant likelihood of success on the appeal. As a result, the application for a stay was dismissed, and the appellant was ordered to pay the respondents' costs of the application. The court's decision adhered to the principles that have been developed in previous cases regarding the criteria for granting a stay of orders.

Orders

Orders of the court

1. The appellant’s application for a stay of Orders 1, 3, 4 and 5 pending the determination of an application for special leave to the High Court be dismissed.

2. The appellant pay the respondents’ costs of this application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		George v Fletcher (Trustee) (No 3) [2012] FCAFC 188
Appeal from:		Fletcher v George & Ors [2011] FMCA 553
Parties:		LAUREN KAY GEORGE v WILLIAM JOHN FLETCHER AS TRUSTEE FOR THE BANKRUPT ESTATE OF LAUREN KAY GEORGE, DR PETER IRONSIDE PTY LTD (ACN 008 126 387), PETER DOUGLAS IRONSIDE and NATIONAL AUSTRALIA BANK
File number:		QUD 192 of 2011
Judges:		SIOPIS, JESSUP AND KATZMANN JJ
Date of judgment:		19 December 2012
Catchwords:		PRACTICE AND PROCEDURE – Application for stay of orders pending determination of special leave application to the High Court – relevant principles
Cases cited:		George v Fletcher (Trustee) [2012] FCAFC 148 George v Fletcher (Trustee) (No 2) [2011] FCA 1033 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia [2003] FCAFC 82 Rinehart v Welker (2012) 285 ALR 191
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Solicitor for the Appellant:	Self-represented
Solicitor for the First Respondent:	Holman Webb Lawyers
Counsel for the Second and Third Respondents:	Mr RM Galloway
Solicitor for the Second and Third Respondents:	Bell Dixon Butler Lawyers
Counsel for the Fourth Respondent:	Mr DJ Morgan
Solicitor for the Fourth Respondent:	Thynne & Macartney Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 192 of 2011

JUDGE:	SIOPIS, JESSUP AND KATZMANN JJ
DATE OF ORDER:	19 DECEMBER 2012
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO BRISBANE)

JUDGE:	SIOPIS, JESSUP AND KATZMANN JJ
DATE:	19 DECEMBER 2012
PLACE:	SYDNEY (VIA VIDEO LINK TO BRISBANE)