Bercove, Abraham v Hermes, C.L. & Ors [1983] FCA 255

Bercove, Abraham v Hermes, C.L. & Ors [1983] FCA 255

The Court held that, although the injunction could not properly be regarded as a stay of proceedings under the judgment appealed from, the Court has power under s.23 of the Federal Court of Australia Act 1976 to grant interlocutory relief, and the justice of the case warranted the grant of an injunction restraining the second respondent from considering the recommendation or the decision and reasons for decision until the appeal is determined, or until further order.

Parties
Appellant: Abraham Bercove; First Respondent: C.L. Hermes; First Respondent: A.C.C. Menzies; First Respondent: J.T. Howard; Second Respondent: Public Service Board; Third Respondent: The Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
30 September 1983
Procedural Posture
Administrative Law Interlocutory Injunction / Interlocutory Application Pending Appeal to Full Court
Outcome
Interlocutory injunction granted
Legal Topics
Interlocutory Injunction, Jurisdiction Under S.23 of the Federal Court of Australia Act 1976, Stay of Proceedings
Administrative Law Interlocutory Injunction Jurisdiction Under S.23 of the Federal Court of Australia Act 1976 Stay of Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Abraham Bercove

Appellant

C.L. Hermes

First Respondent

A.C.C. Menzies

First Respondent

J.T. Howard

First Respondent

Public Service Board

Second Respondent

The Commonwealth of Australia

Third Respondent

Procedural Posture

Administrative Law Interlocutory Injunction / Interlocutory Application Pending Appeal to Full Court

Legal Issues

  1. 1 Whether the Federal Court has power under s.23 of the Federal Court of Australia Act 1976 to grant an interlocutory injunction restraining the Public Service Board from considering a recommendation to dismiss the appellant pending appeal.
  2. 2 Whether the injunction sought constitutes a stay of proceedings under the judgment appealed from.

Ratio Decidendi

The Court held that, although the injunction could not properly be regarded as a stay of proceedings under the judgment appealed from, the Court has power under s.23 of the Federal Court of Australia Act 1976 to grant interlocutory relief, and the justice of the case warranted the grant of an injunction restraining the second respondent from considering the recommendation or the decision and reasons for decision until the appeal is determined, or until further order.

Court Disposition

Interlocutory injunction granted

Orders

  • The time for the hearing of this motion is abridged to enable it to be dealt with today.
  • The Public Service Board (second respondent) is restrained until determination of the appeal or until further order from: (a) considering pursuant to s.63A of the Public Service Act 1922 the recommendation made on 25 October 1982 that action be taken to dismiss the appellant from the Public Service; (b) considering...