Solicitors:
Hunt & Hunt (Appellants)
Nicholas G Pappas & Company (First and Second Respondents)
Crown Solicitor's Office (Third Respondent)
File Number(s): 2016/14472
[2]
[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.]
[3]
Judgment
HIS HONOUR: An application has been made for a stay of orders announced by the Court earlier today in Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic [2017] NSWCA 28.
The application was stood down until 2.15pm this afternoon to allow the order actually sought to be formulated, and for the parties to take instructions about that proposed order. Mr Blake SC, who appears for the unsuccessful appellants, has proposed the following orders:
1 Upon the first to fifth appellants by their counsel undertaking to the Court:
(a) to maintain insurances with respect to the monastery as set out in paragraph 8 of the affidavit of Ratomir Nesic dated 6 August 2015;
(b) to continue to engage the services of Moncilo Graovac and Zorica Graovac as caretakers of the monastery at the first appellant's expense; and
(c) to prosecute expeditiously any application for special leave to appeal to the High Court of Australia, and if special leave to appeal is granted, the appeal;
order that order numbered 2 of this Court and orders 3 to 10 of the Court below be stayed:
(d) for the period of 28 days; and
(e) in the event an application for special leave to appeal to the High Court of Australia is filed within 28 days, then until the determination of the application for special leave to appeal, and if special leave to appeal is granted, the appeal.
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 Bathurst CJ 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.
In short, that test is one that emphasises that the jurisdiction to grant a stay 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.
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.
The orders sought by the appellant were opposed by the first and second respondents and also by counsel for the Attorney-General, who submitted:
1. this case had been ongoing for many years and any further delay in giving effect to the unanimous orders of the Court should be kept to a minimum;
2. secondly, the appellants have not identified any specific prejudice which could not be remedied if the stay were not granted; and
3. thirdly, that the appellants have not identified sufficient prospects of success in obtaining special leave to appeal in order to enliven the extraordinary jurisdiction of Burgundy Royale.
In this regard, I note 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.
In the present case Mr Blake SC submitted that if a stay were not granted that the trust would vest in the Metropolitanate under order 4 of the orders made by White J in Bishop Irinej Dobrijevic & Anor v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors [2015] NSWSC 637, and that the property would then be held for purposes of a different association. He submitted that a diversion of purposes from the true trust purposes was a sufficient matter of prejudice to enliven the discretion to grant a stay. So far as the prospects of obtaining special leave to appeal were concerned, he limited himself to observing that at this stage the High Court had not considered s 9 of the Charitable Trusts Act 1993 (NSW) or its statutory analogues, and for that reason this may be a case warranting a grant of special leave to appeal to the High Court.
I am not persuaded on the material which is before me today that this is an appropriate case for the grant of a stay. It is understandable, given that the decision was only handed down this morning, that no grounds of appeal have been formulated or even foreshadowed, [1] and that no evidence, including any evidence of possible prejudice, has been led. I am not persuaded that the applicant for a stay has met the Burgundy Royale test, for the reasons submitted by the Attorney-General.
I am, however, persuaded that this is a case where Mr Blake should be given an opportunity of putting material and evidence supporting the grant of a stay together if he is able to do so. Mr Pappas, who appeared for the first and second respondents, offered the Court an undertaking that a notice of transfer to give effect to order 4 of White J's orders would not be presented for 14 days from today's date, namely Monday 20 March 2017. Mr Blake SC told me that he was both briefed in and was due to appear as a witness before the Royal Commission into Institutional Responses to Child Sexual Abuse in the week commencing 20 March 2017.
In those circumstances, I think it preferable rather than accept Mr Pappas' undertaking that I make an order for a short period that a notice of transfer not be presented by the first and second respondents before 4pm on Monday, 27 March 2017. I do this reluctantly, but in order to give Mr Blake SC the opportunity to formulate grounds of an application for special leave to appeal to the High Court and lead evidence relevant to any stay sought, if so instructed. That material is at present wholly lacking.
To summarise, I am satisfied that on the material available today that the Burgundy Royale test has not been met and there is nothing which would be done pursuant to the orders of the Court, which cannot be reversed should the High Court grant special leave and ultimately take the view that this Court erred in some or all of the findings it made in the judgment delivered this morning. As the Court of Appeal has now unanimously dismissed the appeal by Mr Blake's clients, and the Burgundy Royale test has not been met, it would be inappropriate to grant a stay.
I am, however, prepared to make the order just identified, which is essentially mechanical, to delay giving effect to those orders, which will mean that the notice of transfer will not be able to be presented before 4pm on Monday, 27 March 2017.
Accordingly, the application for a stay is refused. I make it clear that this is without prejudice to the appellants' right to file a motion and lead evidence seeking a stay from this Court if so advised.
Following the pronouncement of my order, Mr Blake invited me to reconsider my decision on the basis that without a stay his clients would be in breach of trust in conducting services on the property, pending some more permanent stay, if the Court were minded to grant one. Mr Blake submitted that in the circumstances I should make an order for a stay at least until sometime next week to permit services to continue to be conducted by his clients.
As I have said, I am not persuaded on the material before me today that the appellant has met the Burgundy Royale threshold. The Cambridge Credit test (formulated in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685), applied by White J in granting a stay pending the appeal to this Court (see Bishop Irinej Dobrijevic & Anor v Free Serbian Orthodox Church, Diocese for Australia & New Zealand Property Trust & Ors (No. 2) [2015] NSWSC 1976 at [93]), is a very different test to the one that the appellants now face. The order I made was to permit the appellants, if so advised, to make a further application for a stay prior to the transfer of the property coming into effect.
[4]
Endnote
Indeed, Mr Blake does not at this stage have instructions to seek special leave.
[5]
Amendments
09 March 2017 - Typographical errors corrected in paras [5] and [16].
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Decision last updated: 09 March 2017
Parties
Applicant/Plaintiff:
Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust