FONFIELD PTY LIMITED t/as ALLPAINT POWDER COATERS v PHAM [1995] NSWCA 150

FONFIELD PTY LIMITED t/as ALLPAINT POWDER COATERS v PHAM

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 20 November 1995

[1995] NSWCA 150

Priestley JA. This began as an application for a stay to be made today of certain orders made by Burke J in the Compensation Court. The stay as asked for at the commencement of the argument today was a stay until the hearing of the appeal. The claimant for the stay has an appeal as of right and a notice of appeal has been filed. The only grounds raised in that notice of appeal all relate to the claimant's claim that the trial judge failed to afford procedural fairness particularly in that he conducted himself in a way which would, as the notice of appeal says, 'incite in the mind of reasonable observer an apprehension of bias.'

In support of the application for a stay until the hearing of the matter the only material relied on was the reasons for the decision of the trial judge. On the face of them they do not disclose any particular reason for thinking that the ground of appeal is likely to succeed, although, of course, they do not necessarily state the whole picture. But they were all that was put before me in support of the application.

At the last moment before I began to give my reasons upon that application a further application was made that the application for stay until the hearing of the appeal be adjourned only for some time so that the response to a subpoena, the return date for which is 29 November this month in this court, could be obtained and the material to be yielded by that subpoena available to the court in deciding the application. The material which will come forward on the subpoena will probably cast more light upon the merits of the claimant's grounds of appeal.

Had the motion had to be decided today, that is the motion for the stay until the hearing of the appeal on the matter that was before me today, then the prospects of the stay asked for being granted were very shaky indeed.