Dyer v Chrysanthou (No 4)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 02 February 2022
• Neutral Citation: [2022] FCA 51
• Date: 02 February 2022

Federal Court of Australia

Dyer v Chrysanthou (No 4) [2022] FCA 51

File number:	NSD 426 of 2021
Judgment of:	WIGNEY J
Date of judgment:	2 February 2022
Date of publication of reasons:	11 February 2022
Catchwords:	COSTS – respondents’ interlocutory applications for the stay of Registrar’s costs judgment until the determination of appeal proceedings – where insufficient evidence of applicant’s financial capacity – where paucity of evidence of strength of grounds of appeal – where no notice of appeal filed regarding Registrar’s costs order – where some risk of applicant’s inability to meet costs judgment if appeal successful – where undertakings to hold funds in trust agreed in principle – stay applications partially allowed
Legislation:	Federal Court of Australia Act 1976 (Cth), ss 35A(5), 37M Federal Court Rules 2011 (Cth), rr 3.11, 36.08, 41.03
Cases cited:	Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642 Porter v Dyer [2021] FCA 1459 Dyer v Chrysanthou [2021] FCA 578 Urban Alley Brewery Pty Ltd v La Sirène Pty Ltd (No 2) [2020] FCA 351 Viagogo AG v ACCC [2021] FCA 175 Guildford International Group Pty Ltd, in the matter of Aviation 3030 Pty Ltd, Re v Aviation 3030 Pty Ltd [2018] FCA 600
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	49
Date of hearing:	2 February 2022
Counsel for the Applicant:	Ms A Cameron
Solicitor for the Applicant:	Marque Lawyers
Counsel for the First and Second Respondents:	Mr C O’Neill
Solicitor for the First Respondent:	Kennedys
Solicitor for the Second Respondent:	Company Giles

ORDERS

		NSD 426 of 2021
BETWEEN:	JOANNE ELIZABETH DYER Applicant
AND:	SUE CHRYSANTHOU SC First Respondent ; CHARLES CHRISTIAN PORTER Second Respondent

order made by:	WIGNEY J
DATE OF ORDER:	2 FEBRUARY 2022

THE COURT ORDERS THAT:

1. The orders made by Thawley J on 11 June 2021 and Registrar Luxton on 19 January 2022, the effect of which is to require the respondents to pay costs assessed on a lump sum basis in the amount of $430,200.00, be temporarily stayed pending the outcome of the appeal and cross-appeal filed by the respondents in respect of the judgments and orders of Thawley J (appeal proceeding NSD612/2021), subject to the following conditions:

   1. the sum of $430,200.00 is to be paid into a trust account of the first respondent’s solicitors, Kennedys, by 4.00pm on 4 February 2022; and

   2. subject to any further order of the Court, Kennedys are not to release those funds from the trust account before 5.00pm on the day of the delivery of judgment in the appeal proceeding NSD612/2021; and

   3. if the appeal proceeding:

      1. is resolved in favour of the applicant, the funds are to be paid to, or at the direction of, the applicant within 48 hours of the time referred to in order 1(b); or

      2. is resolved in favour of the respondents, the funds may be paid to, or at the direction of, the respondents; or

      3. does not resolve the question of costs wholly in favour of any of the parties, the funds are to be paid or released in accordance with the orders of the Court or as agreed between the parties.

2. The respondents pay the applicant’s costs of the respondents’ interlocutory applications heard on 2 February 2022.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1. Ms Joanne Dyer successfully applied to the Federal Court of Australia last year for an order that Ms Sue Chrysanthou of senior counsel be restrained from acting for Mr Charles Christian Porter in a defamation proceeding that Mr Porter had commenced: see Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 (the injunction judgment). Ms Chrysanthou and Mr Porter were subsequently ordered to pay Ms Dyer’s costs of those injunction proceedings: see Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642 (the costs judgment). The question of costs was subsequently referred to a registrar, who determined that Ms Dyer’s costs be determined by way of a lump sum assessment. On 19 January 2022, the registrar ordered that Ms Dyer’s costs be determined in the amount of $430,200 (lump sum costs order).

2. The effect of the costs judgment and lump sum costs order is that Ms Chrysanthou and Mr Porter are required to pay $430,200 to Ms Dyer in respect of her costs of the injunction proceedings. As no time was specified in the lump sum costs order, Ms Chrysanthou and Mr Porter must pay the assessed sum to Ms Dyer within 14 days of the order: r 39.02 of the Federal Court Rules 2011 (Cth).

3. On 24 June 2021, Mr Porter filed a notice of appeal in respect of, relevantly, the injunction judgment and the costs judgment. On 16 July 2021, Ms Chrysanthou filed a notice of cross-appeal in respect of the costs judgment.

4. The appeals are listed for hearing before the Full Court on 20 and 21 April 2022.

5. Neither Mr Porter nor Ms Chrysanthou have filed any appeal or application for review of the lump sum costs order, though an appeal or application for review has been foreshadowed.

6. On 2 February 2022, Mr Porter and Ms Chrysanthou filed interlocutory applications seeking various orders, including an order that the lump sum costs orders be stayed pending the determination of the appeals in respect of the injunction judgment and the costs judgment and the determination of any appeal of the lump sum costs order. Those interlocutory applications were listed before me as duty judge on the basis that they were urgent. The urgency was said to be that, if the lump sum costs order is not stayed, Mr Porter and Ms Chrysanthou would have to comply with that order and the $430,200 to Ms Dyer by 4.00pm on 2 February 2022.

7. Rule 36.08 of the Rules provides as follows:

36.08 Stay of execution or proceedings under judgment appealed from

(1) An appeal does not:

(a) operate as a stay of execution or a stay of any proceedings under the judgment subject to the appeal; or

(b) invalidate any proceedings already taken.

(2) However, an appellant or interested person may apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined.

(3) An application may be made under subrule (2) even though the court from which the appeal is brought has previously refused an application of a similar kind.

8. Similarly, r 41.03 of the Rules provides that “a party bound by a judgment or order may apply to the Court for an order that the judgment or order be stayed”.

9. The principles upon which a stay of execution or stay of orders may be granted pursuant to r 36.08 of the Rules were helpfully summarised in a recent judgment of Abraham J in Viagogo AG v ACCC [2021] FCA 175 (at [10]-[12]):

Rule 36.08 confers a broad discretion. Generally, there must be demonstrated “a reason or an appropriate case” to warrant the exercise of discretion in favour of granting a stay. It is not necessary to establish special or exceptional circumstances for the grant of a stay: Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65 at 66.

Two questions must be considered: first, is there an arguable point on the proposed appeal: Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 (Nolten) at [24] or some “rational prospect of success” in relation to any of the grounds of appeal: Burns v AMP Finance Ltd [2005] FCA 761 at [5]; and second, does the balance of convenience favour the grant of a stay: Nolten at [24], [46].

The party seeking the order bears the onus of demonstrating a proper basis for a stay, which must be fair to all parties: Alexander v Cambridge Credit Corporation Ltd (receivers...