Dudzinski v Kellow [1999] FCA 1665

Dudzinski v Kellow [1999] FCA 1665

The stay application failed because the first stay sought was misconceived and none of the requirements for a stay was made out. The quantum of costs was a matter for taxation, not a relevant factor for a stay of the costs order; possible bankruptcy consequences were prospective and more appropriately addressed in...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
23 November 1999
Procedural Posture
Notice of Motion for Stay of Full Court Orders Pending Special Leave to Appeal and Appeal to the High Court of Australia / Motion Heard and Determined by Spender J
Outcome
Application for stay refused; applicant ordered to pay respondents' costs of the motion.
Legal Topics
['stay Pending Special Leave to Appeal' 'costs Orders' 'taxation of Costs' 'sequestration Order' 'special Leave to Appeal']
['civil Procedure' 'appellate Procedure' 'bankruptcy'] ['stay Pending Special Leave to Appeal' 'costs Orders' 'taxation of Costs' 'sequestration Order' 'special Leave to Appeal']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion for Stay of Full Court Orders Pending Special Leave to Appeal and Appeal to the High Court of Australia / Motion Heard and Determined by Spender J

Legal Issues

  1. 1 ['Whether the order of the Full Court dismissing the application for leave to appeal should be stayed pending special leave to appeal and an appeal to the High Court of Australia.' "Whether the Full Court's costs order should be stayed pending special leave to appeal and an appeal to the High Court of Australia." "Whether the applicant's claimed inability to pay costs and possible sequestration order would render his appeal rights nugatory."]

Ratio Decidendi

The stay application failed because the first stay sought was misconceived and none of the requirements for a stay was made out. The quantum of costs was a matter for taxation, not a relevant factor for a stay of the costs order; possible bankruptcy consequences were prospective and more appropriately addressed in any sequestration proceedings; taxation had not commenced; there was no real repayment risk, particularly because Griffith University was a respondent; the Court could restore the applicant's position if necessary; and the prospects of special leave were assessed as remote.

Court Disposition

Application for stay refused; applicant ordered to pay respondents' costs of the motion.

Orders

  • ['The application for a stay of each of the orders of the Full Court of the Federal Court, made on 27 August 1999, is refused.' 'The applicant on the motion pay the costs of the respondents on the motion, to be taxed if not agreed.']