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. Any such financial detriment of course must expand the longer the undertaking is in place and if special leave was eventually granted in this matter it would be a considerable time after the grant of special leave that one might expect to have a hearing in the High Court and eventual determination. There is a final factor to be taken into account and that is the submission made by Mr McClintock which has some basis, that the High Court has shown a disinclination in recent times to hear matters confined to the interpretation of state based statutes, unless there is some greater principle or greater national 2 UNREPORTED JUDGMENTS application to be derived from them. There is then perhaps not a high likelihood that there will be any other issue to go to the High Courtin this matter other than the current standing issue. I should add finally, in relation to what I will call the substantive issue in the matter, the Chief Judge in Equity has expressed a view that the appellants have a well based claim in that regard. Taking into account all those factors seems to me at the end of the day the matter which is of most concern is the fact that the appellants are subject to an undertaking as to damages which, if there is to be an appeal to the High Court will extend over a period of years. In circumstances where the matter is in the expedition list in the Equity Division and the Chief Judge who has already heard the matter has indicated a possibility that he would undertake the hearing of the balance of the matter, it seems to me that this is not an appropriate case for a stay and accordingly I refuse the application. The notice of motion will be refused with costs. Orders accordingly.