LEE v LUTZE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 17 February 1989, 17 February 1989 [1989] NSWCA 131 PRACTICE — stay — order for return of prisoner to Victoria under Service and Execution of Process Act 1901 (Cth) — appeal to Supreme Court — Judge (Carruthers J) confirms order — proposed appeal to Court of Appeal — application for stay — reasons of Judge unavailable — effect of denial of stay is immediate return of prisoner and loss of appellate right — held: (1) Exceptional or special circumstances are not needed to secure such a stay. Alexander and Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) and Anor (1985) 2 NSWLR 685 applied; Halabi vy Westpac Banking Corporation [No 2], Court of Appeal, unreported, 8 February 1989 referred to; (2) In the circumstances, at least until the reasons of the trial Judge were available, a stay of the return should be ordered to protect the appellate right. Lewis v Wilson and Anor, Court of Appeal, unreported, 18 December 1987; (1988) 5 NSWJB 6, referred to. Service and Execution of Process Act 1901 (Cth) s19. Kirby P [Orders below] (1) Stay the execution of the order of Carruthers J given earlier this day until Thursday 23 February 1989 at 7 pm; (2) Grant liberty to either party to restore the motion for a stay to the list of the Court of Appeal upon one day's notice to the other; (3) Order the filing of the written submissions by both parties by Monday 20 February 1989 at 4.15 pm and an exchange of such written submissions between the solicitors for the parties; (4) Order that costs of the proceedings before the Court today be costs in the motion for a stay before the Court of Appeal. Counsel for the Claimant: Mr KORN Instructed by: CAMERON GOOLD Counsel for the Opponent: Miss BYRNES Instructed by: DIRECTOR OF PUBLIC PROSECUTIONS (Cth)