THE ABORIGINAL COMMUNITY BENEFIT FUND PTY LIMITED v BATEMANS BAY LOCAL ABORIGINAL LAND COUNCIL [1997] NSWCA 310

THE ABORIGINAL COMMUNITY BENEFIT FUND PTY LIMITED v BATEMANS BAY LOCAL ABORIGINAL LAND COUNCIL

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

BEAZLEY JA 2 June 1997

[1997] NSWCA 310

Beazley JA. This is an application for a stay of proceedings pending the determination of an application for special leave to appeal to the High Court made by the respondents to the Court of Appeal proceedings.

The evidence before me indicates that pursuant to the Court of Appeal's order which upheld an appeal from the Chief Judge of the Equity Division and remitted the matter back to the Equity Division for hearing, the matter is currently before the Chief Judge in the expedition list and is due for mention again on Friday next.

I have no information before me as to when a likely hearing date will be appointed in those proceedings. However there is evidence before me that on the special leave application, there is a possibility that it will be heard in August but a greater likelihood that the hearing date would be in October.

I am informed from the bar table that the respondents in this Court have complied with thenecessary practice directions in the High Court in relation to leave matters.

There are a number of factors which are to be weighed in this matter in determining whether a stay should be granted. On the one hand there is the unsatisfactory process in having cases heard in part by various courts and that would happen if the special leave application was not successful or if ultimately the final appeal was not successful. That process of course came about by the manner in which the matter was determined at first instance but it still raises the question as to whether on a stay application this Court ought to consider to allow that fragmentation of the process to continue.

There is the further factor that the appellants are currently protected by a fairly rigorous injunction order against the respondents which restrains the respondents from carrying on business in relation to or in respect of a contributory funeral benefit business. There is, against that factor, also to be weighed in the balance, the fact that the appellants are subject to an undertaking as to damages in respect of the grant of that injunction. There was no evidence before me as to what the financial detriment might be should the appellants be called upon to make good that undertaking as to damages, however it was not denied by counsel for the respondents that the respondents do carry on a commercial operation and that it was possible that there would be a financial detriment.