Marr, G.N. v Australian Telecommunications Corporation

[1995] FCA 391

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No.  NG 456   of  1991
  )
GENERAL DIVISION                 )

BETWEEN:GEOFFREY NORMAN MARR

Applicant

AND:AUSTRALIAN

TELECOMMUNICATIONS CORPORATION AND ORS

Respondents

27 APRIL 1995

REASONS FOR JUDGMENT
LOCKHART J.
     There is before the Court a motion by Geoffrey Norman Marr seeking a permanent stay of an order for costs made by another judge of the Court, Hill J, on 23 December 1991.  On that occasion his Honour gave reasons for judgment culminating in his order upholding the objection to competency raised by the respondents, and his Honour dismissed the application of Mr Marr.  Later that day his Honour heard argument on the question of costs and ordered that Mr Marr should pay the costs of the respondents of the proceeding.  In due course those costs were taxed in the usual way and a Certificate of Taxation issued by the Taxing Officer on 14 October 1994 in the sum of $6471.83.

Mr Marr seeks a permanent stay of the costs order and he has filed, in accordance with directions of the Court, written submissions as to why that order should be made.  I summarise
them as follows.  He submits that the respondent has made no effort to seek enforcement of the costs order; that a great deal of time has passed since the order was mades in December 1991; and that he has acted on the basis that the order would not be enforced as the respondents later sought to do.

Mr Marr submitted that this matter is bound up with another matter concerning an appeal by him to the Industrial Relations Commission.  He also says that the respondents have failed to produce a material witness to rebut Mr Marr's allegation that the respondents have, in effect, used the threat of enforcing the costs order to stop the proceedings in the Industrial Relations Commission.

Other submissions have been made in writing by Mr Marr, to which I do not find it necessary to refer to, but I have taken them all into account. 

I have been referred to a number of decided cases on this question; in particular the decision of French J in Busby v The Chief Manager, Human Resources Department and Telecommunications Commission & Ors, unreported, 25 February 1992.

Mr Kelly appears for the respondents and neither supports nor opposes the making of the order sought by Mr Marr, and does not dispute that this Court has jurisdiction, though he does not concede that it has. 

There is no doubt that the Court has jurisdiction to deal with the matter as indeed I held in this matter in a judgment given on 1 March 1993.  Not only does the Court have jurisdiction but it has power to make the orders sought by Mr Marr; the power stemming at least from O 37 r 10 of the Court's rules.

In my opinion the time that has elapsed since the making of the initial cost order and the inactivity on the part of the respondents in enforcing it provides sufficient ground to support the permanent stay of the cost order. 

The order of the Court is that the proceedings pursuant to the order for costs made on 23 December 1991 be stayed permanently.

Mr Kelly does not seek to make submissions for or against the making of any cost order.  In my opinion if Mr Marr has incurred costs in support of his motion for the stay he is entitled to them.  Accordingly, I order the respondents to pay the costs of Mr Marr of this motion, if any, including any reserved costs.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice Lockhart.

Associate              Dated:  28 April  1995