Rowe v Emmanuel College

Case [2013] FCA 939

FEDERAL COURT OF AUSTRALIA

Rowe v Emmanuel College [2013] FCA 939

Citation: Rowe v Emmanuel College [2013] FCA 939
Appeal from: Rowe v Emmanuel College (No 2) [2013] FCCA 501
Rowe v Emmanuel College (No 3) [2013] FCCA 1113
Parties: CHAD EVERETT ROWE v EMMANUEL COLLEGE ACN 010 563 256
File numbers: QUD 236 of 2013
QUD 322 of 2013
QUD 534 of 2013
Judge: RANGIAH J
Date of judgment: 18 September 2013
Corrigenda: 3 October 2013
19 September 2013
Catchwords:

PRACTICE AND PROCEDURE – applications – leave to appeal – extension of time for leave to appeal – prospects of success – whether substantial injustice

PRACTICE AND PROCEDURE – costs – security for costs – impecuniosity – costs of appeal – prospects of success – no delay

PRACTICE AND PROCEDURE – judgments and orders stay – pending appeal – prospects of success – balance of convenience

Legislation: Competition & Consumer Act 2010 (Cth) Sch 2, ss 18, 20, 23 and 236
Federal Circuit Court of Australia Act1999 (Cth) s 17A
Federal Circuit Court Rules 2001 rr 13.10 and 36.08
Federal Court of Australia Act1976 (Cth) ss 24(1A), 29, 31A and 56
SchoolsAssistance Act 2008 (Cth) s 20
Trade Practices Amendment (Australian Consumer Law) Act(No. 2) 2010 s 8 of Sch 7
Cases cited: ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 cited
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 applied
Commercial Bank of Australia v Amadio (1983) 151 CLR 447 discussed
Dubow v Fitness First (Australia) Pty Ltd [2010] FCA 660 applied
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
Dobson v Australian Postal Corporation [2013] FCA 320 applied
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied
Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972 applied
Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 applied
Kakavas v CrownMelbourne Ltd (2013) 298 ALR 35 cited
Louth v Diprose (1992) 175 CLR 621 cited
Madgwick v Kelly (2013) 299 ALR 188 applied
Minogue v Williams [2000] FCA 125 applied
MZYTT v Minister for Immigration and Citizenship [2013] FCA 76 applied
Norcast S.ár.L. v Bradken Limited (No 3) [2013] FCA 283 applied
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 applied
Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 cited
Spencer v Commonwealth of Australia (2010) 241 CLR 118 cited
Tait v Bindal People [2002] FCA 322 applied
Wilson v Alexander (2003) 135 FCR 273 applied
Date of hearing: 5 September 2013
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 80
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: Mr AJH Morris QC
Solicitor for the Respondent: Corney & Lind Lawyers

FEDERAL COURT OF AUSTRALIA

Rowe v Emmanuel College [2013] FCA 939

CORRIGENDUM

1.In the Order for QUD 322 of 2013 Order 2 is amended by deleting…

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Rowe v Emmanuel College [2013] FCA 939
Case
[2013] FCA 939
Decision Date

CaseChat Overview and Summary

In the matter of Rowe v Emmanuel College, the Federal Court dealt with several applications arising from a dispute between Mr. Rowe and Emmanuel College. The central issue was the enforcement of a costs order against Mr. Rowe, which could potentially lead to a sequestration order. The court had to decide on the grant of an extension of time to appeal the interlocutory decision, the provision of security for costs in the appeal, and a stay of the costs order pending the appeal.

The court declined to grant Mr. Rowe an extension of time to seek leave to appeal, focusing on the lack of substantial prospects of success and the absence of any substantial injustice if the application were refused. The court also mandated that Mr. Rowe provide security for costs of $15,000 for the appeal, which must be paid by a specified date or the appeal would be dismissed. Furthermore, the court granted a conditional stay of the costs order pending the outcome of the appeal, contingent on Mr. Rowe depositing the specified amount into court by a set date.

The court's reasoning was grounded in the balance of convenience and the potential for substantial injustice if the costs order was enforced while the appeal was pending. The court's final orders included the refusal of the extension of time for the appeal, the requirement for Mr. Rowe to provide security for costs, and the conditional stay of the costs order. The costs of the various applications were reserved for future determination.

The orders specified that the application for an extension of time was refused, with Mr. Rowe ordered to pay Emmanuel College’s costs. Security for costs in the amount of $15,000 was required to be provided by Mr. Rowe by a specific date, with a dismissal of the appeal if not met. Finally, a conditional stay of the costs order was granted, effective upon Mr. Rowe making the required payment, with the costs of the stay application reserved.

Orders

Orders of the court

1. The application for an extension of time to seek leave to appeal and leave to appeal is refused.

2. The applicant pay the respondent’s costs of the application.

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

1. The appellant provide security for the respondent’s costs of defending the appeal in an amount of $15,000 in a form acceptable to the Registrar of the Court on or before 30 October 2013.

2. In the event that the appellant does not provide such security for the respondent’s costs on or before 30 October 2013, the appeal stand dismissed.

3. The costs of the application for security for costs are reserved.

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

1. The Order of the Federal Circuit Court made on 16 June 2012 for the payment by the appellant of costs in the amount of $29,988.49 be stayed until further order.

2. Order 1 is conditional and shall only take effect upon the appellant paying into Court the sum of $29,988.49 on or before 30 October 2013.

3. The costs of the application for a stay are reserved.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, the possibility, however small, that there could be a sequestration order made against Mr Rowe on the basis of the costs order when the costs order may be later set aside persuades me to grant a stay upon a particular condition. I propose to grant a stay until further order on the condition that Mr Rowe pay into Court the amount of $29,988.49 within 42 days.Conclusions I decline to grant Mr Rowe an extension of time to seek leave to appeal against the interlocutory decision of the primary judge given on 15 April 2013. Mr Rowe should pay Emmanuel College’s costs of and incidental to that application. I will order that Mr Rowe pay security for the costs of his appeal against the decision of the primary judge given on 13 June 2013. The amount of the security will be $15,000 and must be given on or before 30 October 2013. In the event that it is not given, the appeal will be dismissed. The costs of that application will be reserved. I will grant a stay of the order of the primary judge given on 7 August 2013 that Mr Rowe pay into Court the sum of $29,988.49. That stay is conditional and will only take effect upon Mr Rowe paying that sum into Court on or before 30 October 2013. The costs of the application for the stay will be reserved.

Ratio Decidendi

Legal Principle Established

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