Thompson v Kane

[2012] FCA 674

FEDERAL COURT OF AUSTRALIA

Thompson v Kane [2012] FCA 674

Citation:	Thompson v Kane [2012] FCA 674
Parties:	PETER JAMES THOMPSON v TERESA KANE and FEDERAL MAGISTRATE SPELLEKEN
File number(s):	QUD 206 of 2012
Judge:	GREENWOOD J
Date of judgment:	8 MAY 2012
Catchwords:	PRACTICE AND PROCEDURE – consideration of an interlocutory application for an order staying the operation of final orders of the Federal Magistrates Court of Australia in circumstances where an order of that Court already operates as a stay of those orders pending the determination of appeals from the final orders of that Court
Date of hearing:	8 May 2012
Date of last submissions:	8 May 2012
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	10
Person assisting the Applicant:	Mr Bell
Counsel for the Respondents:	Ms E Ford
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 206 of 2012

BETWEEN:

PETER JAMES THOMPSON
Applicant

AND:

TERESA KANE
First Respondent

FEDERAL MAGISTRATE SPELLEKEN
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	8 MAY 2012
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The interlocutory application is dismissed with costs. 

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 206 of 2012

BETWEEN:

PETER JAMES THOMPSON
Applicant

AND:

TERESA KANE
First Respondent

FEDERAL MAGISTRATE SPELLEKEN
Second Respondent

JUDGE:	GREENWOOD J
DATE:	8 MAY 2012
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. In this application I am satisfied that the interlocutory application with which the Court is presently concerned (not the final determination of the matter), is an application in which orders have been sought on two footings.  The first is an application for an interlocutory order of this Court to stay the operation of a final order of the Federal Magistrates Court of Australia made on 1 November 2011.  By operation of the existing stay order made by that Court, the final order is stayed pending the determination of the sequence of appeals which are presently on foot.  As to the principal application, a Notice of Objection to Competency has been filed but that matter is not presently being determined. 

2. The terms of the existing stay order make it clear that the final order is stayed until earlier order and thus any discharge of the existing stay would be the subject of further judicial consideration.  At the moment the extant orders of the Federal Magistrates Court of Australia are that the final orders are stayed.  Mr Thompson expresses concern that because the orders are framed in terms of the stay until other order that the order may be discharged and thus the final order would take effect with the result that assets might be sold.  However, that cannot happen whilst the stay order is in place and any variation or discharge of the order would be a matter affecting the interests of Mr Thompson upon which he would need to be heard unless he otherwise elected not to be heard. 

3. The Appellate Court, should the appeals not be pressed, would no doubt be confronted with an application for a discharge of the stay but again Mr Thompson’s interests as an affected person would be protected in relation to any discharge of the interim stay order.  Because the existing stay order is an extant order in force there is no footing upon which this Court ought to grant any supplementary or further order. 

4. The second aspect of the matter upon which the present interlocutory application is brought, concerns an application for orders which would operate in a forensic way to secure the production of documents which go to controversies of fact about assets, monies and other such things.  All of those matters are controversies of fact going to the exercise of original jurisdiction resulting in the orders the subject of the present appeals. 

5. It may be that the grounds of appeal before the Appellate Court are such that should orders be set aside and should the matter be remitted for further determination, a question about such things as discovery of documents might arise but I say no more about that because it turns entirely on the merits or otherwise of the appeals and possible remitter to the primary judge.  I am satisfied that the interlocutory application cannot properly succeed. 

6. There is a question about the costs of the interlocutory application.  Mr Bell has appeared on behalf of Mr Thompson to assist in the answering of questions from the bench about the chronology and the relevant forms of order and other things. 

7. Mr Bell has assisted the bench with answers to those matters. 

8. There was a preliminary question about that matter but I do not need to ventilate that matter further for present purposes. 

9. I am satisfied that the interlocutory application is unmeritorious and could not succeed.  I therefore make an order for costs against Mr Thompson in relation to the interlocutory application.  I am not persuaded that an order for costs ought to be made against Mr Bell about that matter.  It therefore follows that I dismiss the interlocutory application.  I make an order for costs against Mr Thompson in relation to that application but all other matters will turn upon the determination of the primary application itself.

10. In principle, the primary application ought not to be listed for further determination until the determination of the various appeals.  However, should either of the parties wish to list the matter for any reason, the matter will be listed upon request. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        8 May 2012