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. Nevertheless, it seems reasonable, upon the application for adjournment being made, to give the claimant the opportunity to put further material before the court and for the position to be held in statu quo until the matter next comes before the court. I think that should be the earliest time possible for the return date for the subpoena and therefore I am prepared to stand the matter over until 4 December this year. I am strengthened in that decision by the fact that once the application for adjournment was put in the terms that I have mentioned the opponent did not seek to protest about the adjournment but quite properly sought costs of today. The only reason I do not order the claimant to pay the costs of today is the possibility of further considerations emerging upon the further hearing of the motion which might quite possibly be relevant to the costs order made today. I do not think the chances of that are very strong but nevertheless because it seems to me it is possible I will reserve the question of today's costs until the final disposition of the matter. 2 UNREPORTED JUDGMENTS The orders are the stay of the orders as requested in the claimant's notice of motion granted until 4 pm on 4 December next or earlier order of the court. Application for stay until the hearing of the appeal stood over until 4 December 1995. Costs of today reserved. Orders accordingly.