Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fitzgerald v Deloitte Services Pty Ltd (No 2) [2017] NSWCA 152 Hearing dates: 22 June 2017 Decision date: 22 June 2017 Before: Payne JA Decision: (1) the application for a stay is refused. (2) the applicant for a stay pay the respondent's costs of the application for a stay as agreed or assessed. Catchwords: PRACTICE AND PROCEDURE – application for stay pending special leave to appeal to the High Court – Burgundy Royale test – stay refused Legislation Cited: Competition and Consumer Act 2010 (Cth), Schedule 2 Australian Consumer Law, ss 18, 236 Cases Cited: Fitzgerald v Deloitte Services Pty Ltd [2017] NSWCA 139 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 Rinehart v Welker [2012] NSWCA 1 Category: Procedural and other rulings Parties: Kevin Michael Fitzgerald (Appellant) Deloitte Services Pty Ltd (Respondent) Representation: Counsel: No appearance (Appellant) D Stack (Respondent) Solicitors: Bridges Lawyers (Respondent) File Number(s): 2016/373439 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment [Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]] 1. HIS HONOUR: On 21 June 2017, this Court dismissed an appeal from Mr Fitzgerald from a decision of McDougall J in the Equity Division of the Supreme Court, who determined that the appellant was liable to the respondent in the amount of $3,636,368: Fitzgerald v Deloitte Services Pty Ltd [2017] NSWCA 139. In what follows familiarity with the Court's principal judgment is assumed. 2. The history of this matter is as follows. At the conclusion of the Court of Appeal's hearing of this matter on 29 May 2017, Mr Fitzgerald, who was appearing for himself, asked the Court for a stay of the proceedings. He was informed by the Chief Justice that the application for a stay was premature and could be renewed if necessary when judgment was handed down. 3. On 21 June 2017, when the decision was handed down, Mr Makkar, who informed the Court that he was a non-legally qualified employee of the appellant, appeared by leave for the appellant. Mr Makkar applied for a stay of the orders of both this Court and McDougall J. Mr Makkar said from the bar table that the appellant was overseas. Given that the Court was about to embark upon a contested appeal hearing on 21 June 2017, I informed Mr Makkar that the stay application was stood over until 2pm today, 22 June 2017, before me and that he should check the Court listings for which courtroom the case would be heard. 4. Electronic communication of today's hearing was effected upon the appellant at his electronic address for service, although no response was received from him. Mr Makkar did not appear today. The matter was called 3 times outside the Court today but there was no appearance on behalf of the appellant. 5. I had proposed to allow Mr Makkar leave to appear today for the limited purpose of seeking a stay. Mr Stack of Counsel appeared for the respondent. He submitted that the Court should determine the stay application which had been made on behalf of the appellant. The respondent opposed the grant of a stay and submitted it should be refused with costs. 6. It follows from the history recited above that no submissions were made in support of a stay and no evidence led on the application. 7. The test for a stay in matters of this kind has been identified by Bathurst CJ, with whom Beazley P and McColl JA agreed in Rinehart v Welker [2012] NSWCA 1, particularly at [47] where the Chief Justice made clear that in this Court the Burgundy Royale test, identified by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84, should be applied in considering applications for a stay pending an application for special leave to appeal to the High Court. 8. In short, that test is one that emphasises that the jurisdiction to grant a stay pending an application for special leave to appeal is an extraordinary one, and exceptional circumstances must be shown before a stay is warranted. In this context Brennan J made the following remarks (at 684): "A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal." 1. Brennan J (at 685) recognised the following factors as material to the exercise of the Court's discretion: "In each case when the Court is satisfied that a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies." 1. I am conscious that at [48] of Rinehart v Welker Bathurst CJ said: "We do not, however, agree with the respondents that in all cases it is an essential prerequisite for the grant of a stay that the Court finds that there are substantial prospects of success on the special leave application. There may be cases, albeit rare, when the other factors material to the grant of a stay may be of such significance that a stay should be granted even if this Court is unable to reach the view that the application has substantial prospects of success." 1. This is not one of those rare cases. 2. I am not persuaded that this is an appropriate case for the grant of a stay. No grounds of appeal have been foreshadowed and no evidence has been led. I am not persuaded that the application for a stay has met the Burgundy Royale test for the reason that no realistic, let alone substantial, prospect of obtaining special leave to the High Court was shown. 3. This was a case where the principal issues were issues of fact. The appellant was not believed by the primary judge. No principled reason was advanced on the appeal to overturn any of those factual findings. Nor has any reason been identified why the High Court might grant special leave to consider overturning those findings of fact. 4. Indeed, in written submissions drafted by the appellant's former lawyers, which were in effect the only submissions made on the appeal, it was accepted that the invoices from the appellant's company Projects to respondent constituted misleading or deceptive conduct. It was submitted that the admittedly misleading conduct did not constitute a contravention by Projects of s 18 of the Australian Consumer Law because "the element of reliance" was lacking. As Emmett AJA explained: "[44] The submission appears to involve a misapprehension. Section 18 provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 18 says nothing about reliance. It is clear that, on the basis of the findings made by the primary judge, Projects engaged in conduct in trade or commerce that was misleading or deceptive and, accordingly, contravened s 18." 1. Emmett AJA further explained that it is tolerably clear that the reference to reliance was intended to be directed to s 236 of the Australian Consumer Law. There must be a causal connection between conduct that contravenes s 18, on the one hand, and the loss or damage claimed by the claimant, on the other. The appellant submitted that there was no evidence before the primary judge of the respondent having relied upon any misleading or deceptive conduct comprised in the invoices sent to the respondent by Projects. It is clear, however, that the primary judge made an express finding that the respondent, through Mr Wardrop, relied on the representations made by the invoices when making the payments claimed by Projects in the invoices. There was affidavit evidence from Mr Wardrop to that effect. No basis was advanced on the appeal for impugning the finding made by his Honour. 2. Finally, it is clear on the primary judge's findings, which were confirmed in this Court, that the appellant was involved in the contravention by Projects of s 18 of the Australian Consumer Law. The primary judge found that the over-invoicing by Mr Rogut was done "over his protests" and upon the express instructions of the appellant. The findings of the Court were that the appellant caused or directed to be done the acts on the part of Projects that amounted to contravention of s 18 of the Australian Consumer Law. As Emmett AJA explained "there is no basis for any complaint concerning the finding by his Honour that Mr Fitzgerald was involved in the contravention of s 18 within the meaning of s 2 of the Australian Consumer Law". 3. In circumstances where the critical concurrent findings of fact are clear, and no principled basis has been advanced to disturb those dispositive findings of fact, I am satisfied that there is no realistic prospect of the High Court granting leave to appeal. Further, I am not satisfied that this is one of the rare cases where other factors material to the grant of a stay are of such significance that a stay should be granted even if this Court is unable to reach the view that the application for Special Leave to appeal has substantial prospects of success. 4. Accordingly, the application for a stay is refused. 5. The orders of the Court are: 1. the application for a stay is refused. 2. the applicant for a stay pay the respondent's costs of the application for a stay as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2017