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. Until 1988, it was the virtual invariable practice of this Court, on such applications, to deny them. This practice required those who sought a stay for the purpose of supporting an application for special leave to the High Court to make an application to that Court or a Justice of that Court for the stay. Following certain observations of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681, 685 this Court reconsidered its practice. It did so in John Fairfax and Sons Ltd v Kelly [No 2] (1987) 8 NSWLR 510. The Court there indicated that it would, in exercising its discretion to grant or refuse a stay, not adopt the unusual practice of, in effect, requiring the matter to go for that purpose to the High Court but would, in appropriate cases, grant a stay in support of the summons for special leave to appeal. This would relieve the High Court of the burden of disposing of such applications. The Court said it would do so on terms which would be appropriate to the particular case. Normally it would require that an undertaking be given to prosecute the application for special leave to appeal to the High Court with diligence, in accordance with the Rules of the High Court. 2 UNREPORTED JUDGMENTS Since Kelly [No 2] there have been a number of cases in which the guidelines - for they can be no more than that - expressed in it have been further refined. They include Rudis Enterprises Pty Ltd and Anor v Jay and Ors [No 2] Court of Appeal, unreported, 21 September 1987; (1987) 4 NSWJB 211; Sibuse v Shaw [No 2], Court of Appeal, unreported, 25 May 1988 (1988) NSWJB, 74 (which concemed the criminal law) and Edelsten v Ward [No 2] Court of Appeal, unreported, 15 November 1988 (1988) 5 NSWJB 212 (a case which concerned disciplinary proceedings). In those cases the applications for a stay were rejected. The claimant for a stay was required to seek it, if at all, in the High Court. The fact that the public interest was involved, and not just interests inter partes and that injunctive relief beyond the mere order for a stay was required, was held by the Court to distinguish those cases from Kelly [No 2]. In this case, it is suggested that, if it were to grant a stay, the Court would be more generous than the High Court of Australia is in the grant of a stay in support of a proposal to seek special leave to appeal to that Court. It was claimed that, in that Court, exceptional circumstances must be shown to secure a stay. This Court has held, in a different but somewhat analogous context, that special or exceptional circumstances are not needed to secure an order for a stay of orders pending appeal to the Court of Appeal. See Alexander and Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) and Anor (1985) 2 NSWLR 685, 694. As stated in Kelly [No 2] this Court would not wish to be put in the embarrassing position of considering the prospects of an application for special leave to appeal to the High Court from its own judgments. However, it may be that the principle in Kelly [No 2] will need some further refinement if it is shown that there is indeed a disharmony between the approaches to stay applications in the High Court and in this Court. It is possible that the circumstances in this case throw up that need. In this case, if there were a long delay in the hearing of the application for special leave to appeal to the High Court (and particularly if special leave were granted) the utility to the Bank of the proceedings would have been substantially lost. That utility, in practical terms, is for the Bank to be entitled to prosecute its civil proceedings against the appellant notwithstanding the fact that certain criminal proceedings concerning him remain outstanding. The Bank has been offered an opportunity to argue the matter at greater length in the next motions list of the Court of Appeal. No evidence of any special prejudice has been placed before the Court, save for that which I have mentioned. The offer of time for further argument has been declined. It is therefore sufficient in this case to dispose of it in accordance with what was said in Kelly [No 2]. Nevertheless, these facts do, perhaps, highlight the need for further consideration of what was said in that case. There may be a necessity to further elaborate that decision. It may be appropriate, for example, to lay more emphasis upon the actual evidence which is relied upon to show, or to cast doubt on, any prejudice to a party the subject of a stay by this Court's order before the stay is granted. ORDER Dealing with the matter as it was expressed in Kelly [No 2], the following orders should, in my opinion, be made: 1. Stay the execution of the orders of this Court for a period of: (a) 21 days from order, within which time the claimant is to lodge in the High Court of Australia an application for special leave against the orders of this Court; or (b) if such application is within that time lodged in the High Court, for so long as the proceedings for special leave to appeal in the High JOBNAME: No Job Name PAGE: 3 SESS: 1 OUTPUT: Thu Mar 6 17:19:10 2008 /reports/caseml]/case/urj/8902720 URJ HALABI v WESTPAC BANKING CORPORATION [No 2] (Meagher JA) 3 Court of Australia are before that Court; 2. Note the undertaking to the Court by counsel for the claimant that the claimant will prosecute its application for special leave to appeal with diligence and will apply to the High Court of Australia for expedition of the hearing of the application for special leave to 5 appeal in that Court; 3. Costs of the proceedings on the motion before this Court to abide the outcome of the application for special leave to appeal in the High Court of Australia. Clarke JA I agree. 10 Meagher JA I agree. KIRBY P: They are the orders of the Court. 1. Stay the execution of the orders of this Court for a period of: (a) 21 days from order, within which time the claimant is to lodge in the High Court of Australia an application for special leave against the orders of this Court; or (b) if such application is within that time lodged in the High Court, for so long as the proceedings for special leave to appeal in the High Court of Australia are before that Court; . Note the undertaking to the Court by counsel for the claimant that the claimant will prosecute its application for special leave to appeal with diligence and will apply to the High Court of Australia for expedition of the hearing of the application for special leave to appeal in that Court; . Costs of the proceedings on the motion before this Court to abide the outcome of the application for special leave to appeal in the High Court of Australia. Counsel for the Claimant: MR M WALTON Instructed by: BLAKE DAWSON WALDRON Counsel for the Opponent: MR CA SWEENEY QC, MR DEMPSEY Instructed by: ALLEN ALLEN AND HEMSLEY