HALABI v WESTPAC BANKING CORPORATION [No 2] [1989] NSWCA 244

HALABI v WESTPAC BANKING CORPORATION [No 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY (1) P, CLARKE (2) AND MEAGHER (3) JJA 8 February 1989 [1989] NSWCA 244

PRACTICE — stay — application for special leave to appeal to the High Court of Australia from orders of Court of Appeal — practice of the Court in — whether practice more generous to applications for a stay than practice in the High Court — whether exceptional circumstances should be required undesirability of Court of Appeal's consideration of prospects of success in special leave application — held: Stay should be granted — observations by Kirby P on the importance of considering any evidence of prejudice suffered by party the subject of a stay. John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510 applied; Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681, 685 referred to.

LAW REFORM — stay — application for leave to appeal from Court of Appeal Orders to High Court — proper approach of Court of Appeal to stay application — observations (by Kirby P) on the possible need to consider further refinement of the guidelines referred to in John Fairfax and Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510; Sibuse Pty Ltd v Shaw (No 2) (Court of Appeal, unreported, 25 May 1988 (1988) 5 NSWJB 74; Edelsten vy Ward (No 2), Court of Appeal, unreported 15 November 1988 (1988) 5 NSWJB 212.

Kirby P The Court, differently constituted, has reached the conclusion that the appellant's appeal from Rogers J should be dismissed. The reasons for judgment have just been delivered by me on my own behalf and on behalf of the other members of the Court (Samuels and McHugh JJA). See Halabi v Westpac Banking Corporation (No 1), Court of Appeal, unreported, 8 February 1989.

The appellant thereupon sought a stay indicating that it was his intention to seek special leave to appeal to the High Court of Australia from the orders of this court.