Rabel, Andrew Frank v Whitehorse City Council

[1998] FCA 969

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 1707 of 1996

BETWEEN:	ANDREW RABEL Applicant
AND:	WHITEHORSE CITY COUNCIL Respondent

JUDGE:	RYAN J
DATE:	18 AUGUST 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The applicant seeks a stay, pending an appeal instituted by notice dated 7 July 1998, of an order made on 22 June 1998 by a single Judge of this Court requiring the applicant to pay the respondent’s costs of an application for review of a decision of a judicial registrar under the Workplace Relations Act 1996 which his Honour had earlier dismissed. The applicant has referred to a number of authorities, some of them concerned with motions for security for costs, indicating that a stay of an order below should be granted where, without it, the appeal would be rendered nugatory. However, despite being requested to do so by the respondent, the applicant has not filed any material disclosing his present financial position, nor have the costs ordered by the learned primary Judge yet been taxed. There is no suggestion that the respondent, Whitehorse City Council, would be unable to repay any costs which the applicant might have been compelled to pay pending the appeal.

The respondent has presently had to meet out of its own funds the costs of a ten day rehearing before the learned primary Judge which his Honour held had been instituted without reasonable cause.  If a stay were granted, the respondent would also have to fund its defence to the appeal, without having the measure of security which recovery of the costs already ordered would afford it.  In these circumstances, I consider it inappropriate to grant a stay on

the present material.  The motion will, accordingly, be dismissed without prejudice to the right of the applicant to renew his application on proper material after the costs have been taxed or agreed.  The costs of both parties of the motion, including the costs of this day, will be costs in the appeal. 

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            18 August 1998

Counsel for the Applicant:	-
Solicitor for the Applicant:	Appearance in person
Counsel for the Respondent:	Mr D Staindl
Solicitor for the Respondent:	Gary Katz & Associates
Date of Hearing:	18 August 1998
Date of Judgment:	18 August 1998