Natch v Stennson Pty Ltd
[2025] FCA 69
•7 February 2025
FEDERAL COURT OF AUSTRALIA
Natch v Stennson Pty Ltd [2025] FCA 69
File number: VID 57 of 2025 Judgment of: SNADEN J Date of judgment: 7 February 2025 Date of publication of reasons: 11 February 2025 Catchwords: PRACTICE AND PROCEDURE – urgent application for stay of primary proceedings where application for leave to appeal orders of primary judgment filed – whether applicants have arguable ground of appeal – whether interests of justice warrant stay of proceedings – application dismissed Cases cited: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 16 Date of hearing: 7 February 2025 Counsel for the Applicants: Mr O Wolahan Solicitor for the Applicants: TLM Law Counsel for the Respondent: Mr T Scotter Solicitor for the Respondent: KCL Law ORDERS
VID 57 of 2025 BETWEEN: MOHAN NATCH
First Applicant
ESTATE OF ANDAL NATCH
Second Applicant
OWNERS CORPORATION PLAN NO SP026738V
Third Applicant
AND: STENNSON PTY LTD
Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The applicants’ application for a stay of orders contained in the application for leave to appeal dated 22 January 2025 is dismissed.
2.The applicants pay the respondent’s costs thereof fixed in the sum of $3,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)SNADEN J:
By application dated 22 January 2025, the applicants move for a grant of leave to appeal from a judgment of a single justice of this court. By that judgment (the “Primary Judgment”), the court dismissed an application for review of a decision of a registrar, which in turn dismissed an earlier application to compel the respondent to discover documents in a taxation of costs proceeding.
The application for leave to appeal has yet to be allocated for hearing. Nonetheless, the applicants have brought it to my attention, in my capacity currently as the court’s Victorian Registry general duty judge, because there is also sought a suite of other relief, conveniently described as orders designed to stay the application of the Primary Judgment or significant parts of it. That, it is said, requires the court’s urgent consideration, notwithstanding that it has been seven weeks since the Primary Judgment was pronounced. The application for leave to appeal and for a stay of the Primary Judgment is supported by an affidavit affirmed by the first applicant on 25 January 2025 and an affidavit of the applicants’ solicitor, Mr Max David Duncan, sworn 7 February 2025.
The orders that comprise the Primary Judgment—which the applicants now seek urgently to stay—are mostly in the nature of procedural directions. Some context is required. In addition to their ill-fated application for discovery, the applicants also find themselves aggrieved by a taxation of costs decision by which they have been ordered to pay certain amounts to the respondent. That decision, made initially by a registrar, is also the subject of a review application before a judge. That review, like the determination from which it is brought, is said to warrant the orders for discovery that the applicants have, thus far, twice failed to secure (most recently, by the Primary Judgment). Upon dismissing the application for review of the registrar’s discovery decision, the primary judge made a number of programming orders concerning the progression of the applicants’ more substantive challenge to the taxation decision. His Honour also ordered that they pay the respondent’s costs of their unsuccessful discovery review.
Undeterred, the applicants hope now to be granted leave to appeal from his Honour’s discovery ruling; and, in the meantime, move on an urgent basis for orders to stay both the costs order and several of the programming orders that are the subject of the Primary Judgment.
For the reasons that follow, that relief should not be granted and the applicants should pay the respondent’s costs of and pertaining to this stay application.
Where an application is made for a stay of proceedings, it is necessary for an applicant to demonstrate an appropriate case for it. Prima facie, a successful party is entitled to the benefit of the judgment obtained and the court asked to stay it is entitled to commence with the presumption that it is correct: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65, 66 (Burchett, Heerey and Whitlam JJ).
Demonstrating that a stay is appropriate generally requires an applicant to demonstrate an arguable ground of appeal. Here, the applicants seek to discharge that onus via reliance upon a draft notice of appeal, which was annexed in the usual way to the first applicant’s supporting affidavit, which they propose to file in the event that their application for leave to appeal is successful.
That draft notice of appeal charges the primary judge with having erred by failing to require the respondent to discover categories of documents that were said to be relevant to whether or not the bill of costs in respect of which discovery was sought had been prepared in contravention of the indemnity principle (that is, the principle that a successful party ought not to recover by an order for costs more than the costs that it was obliged to pay to its representatives).
Two grounds are sought to be advanced in that respect. Both are lengthy and, in the present context, it is unnecessary that I should attempt anything more than to summarise them.
By the first, the applicants hope to impugn the primary judge’s conclusion that there was nothing in the evidence to demonstrate that some breach of the indemnity principle was, as the authorities put it, “on the cards”, such that their discovery application might be said to have graduated from mere fishing expedition to a genuine endeavour to obtain helpful documents. The ground proceeds predominantly as an attempt to relitigate the reasons that the primary judge gave for favouring the conclusion to which he was drawn (namely, that there was nothing that suggested that it was “on the cards” that the court might find that the indemnity principle was relevantly in play).
The second proposed ground is similarly directed to the primary judge’s “indemnity principle” conclusion. I confess some difficulty in making sense of it; but it seems to be premised on the suggestion that the primary judge ought to have acted upon some deficiencies that he was minded to identify in the manner in which the respondent’s bill of costs had been presented. Counsel for the applicants helpfully indicated that the second ground does not bear upon the issue of discovery that was the subject of the Primary Judgment; at least not in a way additional to that with which the first proposed ground of appeal deals.
It is not necessary for me, in the present context, to assess at anything more than an impressionistic level the applicants’ prospects of (a) being granted leave to appeal; and (b) succeeding on the grounds that they hope to agitate. Looking only in that context, I do not consider that they enjoy much in the way of prospects of success.
The Primary Judgment involved the exercise of a discretion concerning a matter of practice or procedure. Although not immune to correction on appeal, there is a significant degree of ambition inherent in what the applicants hope to achieve. They would need to demonstrate that his Honour’s discretion miscarried in some way. The closest that their appeal grounds come in that regard is in the suggestion that his Honour failed to have regard to relevant evidence about the respondent’s relationship with other parties in the substantive action in connection with which the relevant bill of costs was prepared. That does not strike me as a contention likely to find favour with the court on appeal. As his Honour noted in another context, the arrangements that the respondent struck with other parties as to the apportioning of other liabilities is (or, in my view, is quite likely to be) insufficient to demonstrate a prospect that the bill of costs was somehow offensive to the indemnity principle.
Additionally, I do not consider that the prejudice that will befall the applicants in the event that no stay is granted will be especially significant. The orders that they hope to stay are procedural orders. In the absence of a stay, all that will happen is that those procedures will play out, and the court will proceed to determine the application that they have made to review the taxation of costs decision earlier referred to.
Even assuming that they are granted leave to appeal and that their appeal succeeds, it is not apparent that that will visit significant or irremediable prejudice of the kind that is typically demonstrated in support of a stay application. It may involve the incurring of costs but there is no obvious reason why that should suffice for present purposes.
In the circumstances, I am not persuaded that the interests of justice should warrant the stay for which the applicants move. Their application in that regard is dismissed. There is no reason why they should not pay the respondent’s costs. I will make orders to that effect.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 11 February 2025
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