EDELSTEN v HIS HONOUR JUDGE WARD QC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, Hope and SAMUELS JJA 15 November 1988, 15 November 1988 [1988] NSWCA 41 PRACTICE — stay — foreshadowed application for special leave to appeal to the High Court of Australia from an order of Court of Appeal — Court of Appeal dismissed appeal from Medical Tribunal — inutility of a stay as such — application for injunction to restrain Medical Tribunal from further hearing, pending application to High Court — whether Court of Appeal should grant injunction — Held: Application involves the protection of the public — public law invoked — provision of an interim injunction should be sought from the High Court. John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510 distinguished; Sibuse Pty Ltd v Shaw (No 2), unreported, CA, 25 May 1988; (1988) NSWJB 74 followed. ORDER Motion dismissed with costs. Kirby P Application is made to the Court for an order that the Medical Tribunal constituted under the Medical Practitioners Act 1938 be restrained for a period of 28 days from the further conduct of an inquiry into complaints against the claimant, Dr Geoffrey Edelsten. It appears from an affidavit of Ms Meryl Shenker that, subject to the formal receipt of advice from senior counsel, the claimant proposes to apply to the High Court of Australia for special leave to appeal from the decision of this Court given on 11 November 1988. By its decision, the Court, which was then constituted by Hope, Samuels and Clarke JJA, dismissed with costs the appeal by the appellant to this Court from the Medical Tribunal. See Edelsten v Richmond and Ors, unreported, CA, 11 November 1988. The affidavit of the claimant's solicitor indicates that enquiries have been made of the High Court registry. Advice has been received that the motion lists for 25 November 1988 and 9 December 1988 are full, save for urgent applications. The next available date for the hearing by the High Court of the claimant's summons for special leave would therefore be 17 February, 1989. The formal order sought by the claimant in the notice of motion was for a stay of this Court's order for a period of 28 days. Such an application involves a common misapprehension. The provision of a stay would not, without more, prevent the Medical Tribunal from proceeding. The order of this Court was a negative and not a positive one. Furthermore an order for 28 days would not protect the claimant until 17 February, 1989 when the High Court, according to the evidence, would reach the matter. It must therefore be contemplated that the claimant envisaged that a further application to the High Court would be necessary in order to extend the period of protection beyond that which he seeks from this Court at this time. The virtually invariable practice of this Court before the decision of Brennan J in Jennings Constructions Ltd v Burgandy Royale Investments Pty Ltd (1986) 161 CLR 681 was to require, in the case of applications for a stay or other relief in support of an application for special leave to appeal to the High Court of Australia, that such application should be made to a Justice of that Court. 2 UNREPORTED JUDGMENTS Following the decision of Brennan J, this court in John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510 indicated that it would, in the normal case, consider for itself the provision of a stay upon conventional terms which were there described. It would do so where that was appropriate as shown by the facts of the particular case. The Court's practice thereupon changed. However, in a number of cases since Kelly (No 2) it has been pointed out that each case depends, as necessarily it must, the discretion of the Court being invoked, upon the particular circumstances of each case. Furthermore, in Sibuse Pty Ltd v Shaw (No 2), unreported, CA, 26 May 1988; (1988) NSWJB 74, the Court indicated that, where the public law was invoked and something more than a mere stay was sought, the case might be such that the application should be made to the High Court of Australia. That was what was ordered in that case. In Sibuse Pty Ltd v Shaw (No 2) I took a different view. I considered that the principle which Brennan J had suggested, and the avoidance of unnecessary applications to the High Court where this Court was in a position to decide interim relief pending an application for special leave, suggested that such applications should be made to this Court. This would be so even where additional relief beyond a stay was sought and even where the public law was involved. However, that was not the view which Hope and Priestley JJA took. Their view in that case prevailed. It is the holding established by that case. I believe that I should follow what was done there in this case As I have said, every case will depend upon its own circumstances. However, in my opinion, this case is more analogous to the position in Sibuse Pty Ltd v Shaw (No 2) than to the decision of the Court in John Fairfax and Sons Ltd v Kelly (No 2). When the inutility of a stay was pointed out the claimant sought relief beyond a stay. He sought an order that the Medical Tribunal be restrained from further proceeding against him. He sought such restraint for 28 days only. He himself indicated that he could not, in all probability, have his case heard in the High Court until February 1989. He must therefore be taken to contemplate at some stage an application for protection to the High Court or a further and later application to this Court. Consistent with Sibuse Pty Ltd v Shaw (No 2), it seems to me that this Court should order that the motion for a stay be dismissed. No suggestion was made that a short holding order was necessary pending urgent application to the High Court. Necessarily, the course proposed by me says nothing about the claimant's right to move the High Court of Australia for relief in support of the proposed application which he intends to bring before it. The order which I would therefore propose is that the motion be dismissed with costs. Hope JA I agree. Samuels JA I also agree. I would like to make it clear that in my view it would be inappropriate in this case to order a stay. It is not at all a question merely of deciding that this Court should not consider the matter but should pass it, as it were, to the High Court. It seems to me that this is a case, as the President has said, in which the decision in Sibuse Pty Ltd v Shaw (No 2) represents the correct way of approaching the matter. I agree with the order that has been proposed. KIRBY P: The order of the Court is that the motion is dismissed with costs.