Joye, Ian Edward v Sheahan, John [1996] FCA 503

CATCHWORDS

JURISDICTION, PRACTICE AND PROCEDURE - stay of proceedings for examination of a director under s. 596B of the Corporations Law pending special leave application to High Court - factors relevant to exercise of discretion to stay - "substantial prospect that special leave to appeal will be granted" - application in respect of order for substituted service of process upon solicitor having no instructions to accept service from client outside of Australia - prospect of obtaining special leave "not insubstantial" whether grant of stay will cause loss to respondent - loss to respondent from grant of stay should be minimal - where "balance of convenience" lies - operation of examination summons suspended Corporations Law s. 596B Ex parte Bucknell (1936) 56 CLR 221 - applied Marsden v Amalgamated Television Services Pty. Ltd., unreported, High Court, 6 May 1996, Gummow J - considered Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (No. 1) (1986) 161 CLR 681 - applied De L v Director-General, NSW Department of Community Services (1996) 136 ALR 201 - considered Gerah Imports Pty. Ltd. v The Duke Group Ltd. (in liq.) (1994) 119 ALR 401 - considered Aboriginal Development Commission v Ralkon Agricultural Co. Pty. Ltd. (1987) 15 FCR 159 - considered Sharp v Deputy Commissioner of Taxation (1988) 18 FCR 475 - considered IAN EDWARD JOYE v JOHN SHEAHAN No. SG 3137 of 1994 BEAUMONT, SPENDER & LEHANE JJ SYDNEY (Heard in Adelaide) 14 JUNE 1996

IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY) No.SG3137 of 1994 ) GENERAL DIVISION )

APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: IAN EDWARD JOYE Applicant AND: JOHN SHEAHAN Respondent CORAM: BEAUMONT, SPENDER AND LEHANE JJ. PLACE: SYDNEY (Heard in Adelaide) DATE: 14 JUNE 1996 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The time for filing the applicant's notice of motion dated 2 May 1996 be extended up to and including that date. 2. Leave to appeal be granted. 3. The appeal be allowed, with costs. Set aside the orders made at first instance on 15 April 1996; in lieu thereof, order that, upon the applicant, by his solicitors, filing in the Registry within seven days of this date a written undertaking (a) to pay damages on the usual terms; and (b) to prosecute with due diligence the special leave application in the High Court sittings in Adelaide in August 1996, any further proceedings upon the summons for the examination of the applicant issued pursuant to s.596B(1) of the Corporations Law be stayed until the High Court has determined the special leave application; further order that the respondent pay the applicant's costs at first instance. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.