2. The appeal has not yet been heard because, by consent, certain basic questions involved therein were referred to the Full Court which answered them earlier today.
3. The background to the stay application is as follows. The respondent had brought 3 plaints before the warden's court. Plaint No. 4240 of 1986 alleged that the applicant, by over-pegging the respondent's Mineral Claim No. 516 (before the respondent acquired that claim) when pegging out its own adjoining Mineral Claim No. 535, had wrongly located more than 90% of the area of MC 535 within the boundaries of MC
4. The warden was asked to determine the boundaries between these claims and did so. The applicant appeals against that decision. One effect of that decision was that the land in which the applicant had drilled certain scout holes, from which it had obtained the core samples, lay within the respondent's claim. Plaint No. 4330/86 had complained about this, seeking an order that the core samples be delivered up to the respondent together with the information and assayed results the applicant had derived from the cores. The warden's court held that the respondent was entitled to the samples and the results of the tests made upon the samples, and made the order sought by the respondent. The applicant's appeal is against that decision alleging error of law and fact; meanwhile it seeks a stay of the order that it deliver up the core samples and the results of the tests on those samples.
5. The applicant relied on the affidavit of Mr Stirk of 10 June 1987 and the evidence of Mr Griffin a geologist.
6. Mr Griffin deposed that the core samples were taken from 6 scout holes drilled in the land in dispute, and that assay reports had been prepared therefrom. The cost was of the order of $150,000. He testified as to the uses, legal and illegal, to which he considered the information in the reports could be put if it came into the hands of someone other than the applicant. He did not consider that the utility of that information related only to the land in dispute and MC 516. He considered that although the core samples had not been oriented they would assist the applicant in determining where best to carry out further drilling in its tenements in that general area.
7. The respondent relied on the evidence of Mr Shields a geologist, Mr Bloomfield a surveyor, and Mr Quartermain its manager.
8. Mr Shield's evidence was that some 25 years ago he had made a geological survey and mapped the Union Reefs area, within which MC 516 lies. He had co-authored a Bureau of Mineral Resources report in 1967 on the gold prospects of that area. Mr Shields considered that the core samples bore only upon the hard rock gold potential of MC 516 and that they were important in developing an exploration programme for part of MC 516 to prove any ore reserve. He estimated the cost of doing so at some $1,000,000. He considered that the information from the cores would not be used for purposes other than that.
9. It appeared from the evidence of Mr Quartermain that a public company listed on the Australian Stock Exchanges, Eastern Gold N.L., might make an offer to acquire most of the shares in the respondent, which is an unlisted public company; if so, the respondent would become a subsidiary of Eastern Gold N.L. which has an issued share capital of some $28,000,000. This would make it easier for the respondent to raise finance from the public; it appeared that the respondent had encountered some difficulties in floating itself as a listed company. Mr Quartermain's evidence was that the respondent had some 22-24 granted Mineral Claims, a few of which (including part of MC

516. were presently under dispute. His evidence was that the respondent was currently "in the red"; its financial difficulties restricted the development work which it could carry out. The only assets of the respondent were its mining tenements and it had no intention of putting in a takeover bid for the applicant.

9. It is unnecessary to go further into the facts.
10. It is clear that whether or not a stay should be granted is a matter within the discretion of this Court.
11. The applicant submits that the principles which guide the exercise of that discretion are determined by the nature of the appeal against the decision of the mining warden's court. It also submits that the decision of the warden's court is not presumed to be correct and for that reason the applicant need not show special or exceptional circumstances to obtain a stay. In summary, as I understood it, the applicant's argument was:- (1) the approach to staying an order of the warden's court differs to the staying of an order of a superior court; (2) the criteria applicable to such a stay are likewise different; and (3) the onus on the applicant for a stay of an order of the warden's court is not as high as in the case of a stay of an order of a superior court.
12. By way of contrast the applicant points to the principles applicable to stays in two other types of appeal. The first involves appeals where common form stay provisions such as Order 52 Rule 17 of the Federal Court Rules provide that an "appeal to the Court shall not operate as a stay" except in so far as the contrary is directed. Rule 83.09 of the new Supreme Court Rules is to similar effect. The applicant relies upon The Annot Lyle (1886) 11 PD 114 as authority for the proposition that the basis of such provisions is two-fold: that in those appeals the presumption is that the judgment under appeal is correct and that the Court should not deprive the victor of the fruits of his victory.
13. However, I consider that examination of The Annot Lyle (supra) shows that it is not authority for the former of those propositions. The case involved an application for a stay of execution pending an appeal in an Admiralty action from the Court of Appeal to the House of Lords. No supporting affidavits had been filed. Bail had been given and it was contended that the respondents, successful below, were thereby secured in the fruits of their victory. The Court of Appeal did not accept that this was so, and considered there was no reason why the normal rule - that an appeal did not stay proceedings - should not apply. Nowhere did the Court refer to any presumption that the judgment under appeal was correct. The observations of Barton J. in McBride v Sandland (No. 2) [1918] HCA 59; (1918) 25 CLR 369 at p 374, on which the applicant also relied, do not include reference to a presumption that the decision under appeal was correct. His Honour said:- "The ordinary principle is that a successful party is entitled to the fruits of his judgment. That being so, there must be sound reasons sufficient to justify the Court in suspending his right."
14. The common form of stay Rule strikes a balance between the competing interests that a successful party ought not to be deprived of the fruits of his judgment, and that a successful appeal should not be rendered nugatory; see J.C. Scott Constructions v Mermaid Waters Tavern Pty Ltd (No. 1) (1983) 2 Qd R 243 at p 247.
15. When the issue is whether a stay should be granted it is, I think, irrelevant to consider whether the judgment under appeal is to be presumed to be correct. That question is relevant to the entirely separate and important question of how an appellate court should approach its functions, a question now resolved by Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. Subject to the appeal, the decision of the warden's court is conclusive as between the parties and determines their rights; that is its legal effect and the source of the respondent's entitlement to the fruits of its judgment.
16. The applicant, however, relied on Federal Gold Mine Ltd v Ennor [1910] HCA 54; (1910) 13 CLR 276 to support its submission that the decision of the warden's court is not, for the purposes of the appeal, to be presumed to be correct. That case involved an appeal from the Local Court in Western Australia. The appellate provisions in the Local Courts Act 1904 (W.A.) were broadly similar to those in Part VI of the Local Courts Act but there the appellate court was at large in its power to draw inferences of fact whereas under Part VI it may only draw "all inferences of fact which might have been drawn by the Local Court appealed from". The High Court held that the appeal from the Local Court in Western Australia was in substance a rehearing and the appellate court was not bound to regard the decision of the Local Court as prima facie correct. But this must be properly understood; the Court clearly had in mind the question of the proper approach of the appellate court to the appeal. The Supreme Court had been of opinion that it was bound to accept the decision of the Local Court unless it was shown to be demonstrably wrong. Griffith C.J. stressed (at p 279) that "the appellant is entitled to the independent judgment of the Court of Appeal". The judgment of Barton J. at p 284 makes it clear that this applies also to an appeal from a court constituted by a Judge.
17. It is clear, in my opinion, from the Full Court decision on the Reference, that Ennor (supra) applies to appeals from the warden's court even though those appeals are not characterized as rehearings. However, I do not consider that the fact that for the purpose of deciding the appeal it is not presumed that the decision of the warden's court was correct, is of assistance to the applicant. The approach to be taken by the appellate court - the need that it apply its "independent judgment" - does not bear upon the question of what is required of the applicant for a stay; that is governed by s.55 of the Local Courts Act, and Rule 22 of the Local Court Appeal Rules. All appellate courts are required to give their "independent judgment" on an appeal going to the facts, whether the appeal be stricto sensu or by way of rehearing, and statements in some of the authorities of the consequences of the proposition that the judgment under appeal is presumed to be correct and must be shown to be wrong before it can be upset - see Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296 at pp 303-7, per Barwick C.J. - must be read in the light of Warren v Coombes (supra) pp 536-553.
18. The true position, as I understand it, is that this Court has a general discretion to stay execution upon a judgment which is under appeal, but where a common form Rule such as Rule 83.09 regulates the question of a stay, the construction of the terms of such Rules indicates that there is in general to be no stay unless the circumstances are such as to warrant it. That is, the norm is no stay. The Court cannot look beyond the Rule; see Attorney-General v Emerson (1889) 24 QBD 56 at p 58. The circumstances which would displace this general approach have been described as "special" or "exceptional"; see, for example, Klinker Knitting Mills Pty Ltd v L'Union Fire Accident and General Insurance Co. Ltd [1937] VicLawRp 28; (1937) VLR 142 at p 143 and Federal Commissioner of Taxation v Myer Emporium Ltd [1986] HCA 13; (1986) 64 ALR 325 at p 327. This, I think, puts the burden too high though it is one which is not lightly discharged. As Lowe J. put it in Klinker Knitting Mills Pty Ltd (supra) at p 143: "The facts must justify the stay". The burden upon an appellant under the common form Rule is perhaps better expressed in terms used in Alexander v Cambridge Credit Corp Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at p 694:-"... it is sufficient that the applicant for a stay demonstrates a reason or an appropriate case to warrant the exercise of the discretion in his favour". In other words, in a case under the common form Rule the general discretion to stay is not fettered but "appropriate reasons" must be shown by an applicant before a stay will be granted; see Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590 at pp 594-5 per White J., where his Honour notes that it is also necessary "to show that the appeal machinery is not being used as an instrument of oppression or merely as a delaying tactic". There are many illustrations of what are "appropriate reasons" for this purpose: for example, if there is a risk that the appeal would be rendered nugatory in the absence of a stay - see Wilson v Church (No. 2) (1879) 12 Ch D 454.
19. For present purposes, however, the relevant point is that the approach under the common form Rule exists as a result of the construction of the applicable Rule; and that construction does not turn upon a presumption that the decision under appeal is correct but upon the language of the Rule.
20. Matters relevant to the exercise of an inherent jurisdiction of the Court to stay execution on an application for special leave to appeal were considered by Brennan J. in Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 69 ALR 265. This was the second type of appeal to which the applicant drew attention, by way of contrast. His Honour held that there was jurisdiction to stay if otherwise the subject matter of the litigation could not be preserved; exceptional circumstances had to be shown, to warrant a stay. In The Marconi's Wireless Telegraph Co. Ltd v The Commonwealth (No. 3) [1913] HCA 23; (1913) 16 CLR 384, where the defendant sought a stay pending its application for special leave to appeal to the Privy Council, the High Court said (at p 386):- "The Court will not ordinarily grant an application of this kind unless very strong and special grounds are shown... It really is a question of the preservation of the rights of the parties without disregard of the balance of convenience"

Brennan J. in Jennings Constructions Ltd (supra) applied these remarks and said (at p 267):- "In each case when the court is satisfied 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." 22. As I say, the applicant drew attention to these remarks, for the purpose of distinguishing them. 23. The applicant submits primarily that neither the factors relevant on an application for a stay under provisions such as Rule 83.09, nor those identified by Brennan J., apply on this application. It is submitted that the guiding principles here are two-fold: first, whether there is a need for a stay so as to preserve the subject matter of the litigation; and, if so, second, whether or not either of the parties would suffer prejudice if a stay were granted. The applicant submits that it does not have to show that special or exceptional circumstances warrant a stay. 24. The applicant founded these submissions - and the distinction between stays controlled by the terms of Rules such as Rule 83.09 and stays in cases involving applications for leave to appeal, as opposed to stays in appeals from the warden's court - on the basis that the appeal from the warden's court had a distinctive nature, and on the particular statutory provisions which apply to stays of the warden court's decision. As to these matters, the applicant relied upon an interpretation of s.159 of the Mining Act, and Part VI of the Local Courts Act (comprising ss.53-62), which provides for appeals from Local Courts. 25. It is unnecessary to deal with many of the applicant's submissions on these matters. They lay at the root of the applicant's case on the Reference before the Full Court, the decision in which was given earlier today. The Full Court made it clear that an appeal from the warden's court is treated in the same way as an appeal from a Local Court; in its essence it is an appeal stricto sensu and not a rehearing but that characterization does not in any way affect the applicant's entitlement to the independent judgment of the Supreme Court on the appeal. In the light of the Full Court's decision, it is also unnecessary to deal with those submissions of the applicant which equated the appeal from the warden's court with an appeal from a Court of Summary Jurisdiction; nor with the submissions dealing with a stay which relied upon an analogy with the grant of bail following appeal from a conviction. 26. I turn to the specific legislative provisions relevant to this application for a stay; they are contained in the Local Courts Act and the Local Court Appeal Rules. 27. Section 55 of the Local Courts Act provides for a stay, as follows:- "55. STAY OF PROCEEDINGS When an appeal has been instituted, the Court to which the appeal is made or a Justice or Judge, as the case may be, of that Court or the Court from which the appeal is made or a Judge or