Court of Appeal (WA)|1998-10-29|Before: Mr P, Ipp J, Anderson J, Pidgeon J

Hamersley Iron Pty Ltd & Ors v Avon Francis Lovell & Ors [1998] WASCA 304 (29 October 1998)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKERS' UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WA BRANCH

Execution - Order for payment of fines for contempt of court and costs - Application for stay pending hearing of an application to High Court for special leave to appeal.

Stay not required to preserve subject matter or integrity of litigation - No risk that contemnors would be unable to recover any payment made if granted leave and if their appeal succeeded.

A stay would only be granted in special or exceptional circumstances where it was necessary to preserve the subject matter of the litigation or where refusal of a stay would create difficulties in the relief available to High Court or where there was a real risk that the successful appellant could not be restored substantially to his former position - Greenco Pty Ltd v Wilden Pty Ltd followed Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd explained.

Considerations in granting a stay did not differ whether the application for stay was made to the High Court or to the Supreme Court.

Where on an application for stay an appeal was arguable, or neither party might suffer prejudice and expeditious steps to have the application heard had been taken and the leave application would be heard in near future these factors did not even when taken together amount to special circumstances

Attorney General for NSW v Radio 2UE Sydney Pty Ltd & Laws (1992) NSW SC 28

Robinson v Corse, unreported; SCt of WA; Library No 980429; 3 August 1998

I have read the reasons of Ipp J and Anderson J. I agree with those reasons.

By reasons published on 22 May 1998 (Library No 980273), this Court declared that each of the contemnors had committed various contempts of court. On 16 July 1998 (Library No 980397) fines aggregating $40,000 and $55,000 were imposed on the first and second contemnors, respectively, and various costs orders were made. The contemnors now apply for an order staying execution of the fines and payment of the costs pending the hearing of an application to the High Court of Australia for special leave to appeal.

An unusual aspect of the contemnors' application is that they make no assertion that they will suffer prejudice should execution not be stayed; nor do they assert that they are not readily able to pay the fines and costs. The contemnors' affidavits contain no evidence bearing on these issues.

In support of their application the contemnors advance the following propositions. They contend that they have a strong case on appeal (both as to the findings of guilt and the amounts of the fines) and there is a substantial prospect that they will be granted special leave. They assert that the application for leave to appeal is made bona fide. They contend that the applicant (Hamersley Iron Pty Ltd) will suffer no prejudice if the stay is granted; there are no fruits of the litigation which it is waiting to enjoy. They have expeditiously taken steps to prosecute the appeal and the application for special leave should be heard within two to three months. The contemnors submit that on these grounds the stay should be granted.

This Court's responsibilities in dealing with an application for a stay pending leave to apply to the High Court are "significant", and the application has to be dealt with "in a principled fashion": De L v Director General, New South Wales Department of Community Services [1996] HCA 9; (1996) 136 ALR 201 at 203. I shall attempt to set out what I understand to be the relevant principles.

In bringing the application the contemnors rely on the inherent jurisdiction of this Court. Undoubtedly, this Court does possess such a jurisdiction (State Bank of Victoria v Parry (1989) WAR 240 at 244) which is part of the broad inherent jurisdiction "to endeavour to ensure that the pursuit of [the Court's] ordinary procedures by litigants does not lead to injustice": Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354 at 361.

In addition to its inherent jurisdiction this Court is empowered by O47 r13(1) to grant a stay. This rule provides:

"The Court, if satisfied by the judgment debtor or other person liable to execution under a judgment or order -

(a) that by reason of special circumstances it is inexpedient to enforce the judgment or order; or

may stay the execution for such period and on such terms as the Court thinks fit."

The need to establish "special circumstances" (the phrase referred to in O47 r13(1)(b)) applies also to a stay sought under the inherent jurisdiction of the Court: State Bank of Victoria v Parry at 244. The general principle is that "a stay being the exception, the applicant must show special circumstances" (per Derrington J in J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) (1983) 2 Qd R 255 at 258, and cases cited there. In Cox v Simeon, unreported; FCt SCt of WA; Library No 5063; 7 September 1983 Burt CJ emphasised that special grounds must be shown before a stay will be ordered.

While these authorities concern stays of execution pending appeals from a single Judge to the Full Court of a State, the position is no different in regard to an appeal from the Full Court of a State to the High Court. In Federal Commissioner of Taxation v Myer Emporium Ltd [No 1] [1986] HCA 13; (1986) 160 CLR 220, Dawson J had regard to O70 r12 of the High Court Rules 1953 (Cth) which provided that unless the Court or a Justice otherwise orders, an appeal shall not operate as a stay of proceedings and said (at 222-223):

"O70 r12 was amended on 5 December 1985 and in its new form is the counterpart of similar rules in other jurisdictions. It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal ... Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory ... Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering monies paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed."

It is to be noted that in New South Wales the approach, generally, is not to require "special" or "exceptional" circumstances to be established before a stay will be granted: Alexander v Cambridge Credit Corporation Ltd (Rec Apptd) (1985) 2 NSWLR 685. Two points are presently relevant in regard to this approach. Firstly, unlike the position in this State, the relevant New South Wales Rule of Court does not require "special circumstances" or its equivalent to be shown. Secondly, as Kirby J pointed out in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 308 a less stringent approach has not been adopted by the High Court in respect of its own stay orders. His Honour observed:

"In the High Court, the old rule of stringency continues largely to be maintained, with particular force where no grant of special leave to appeal has yet been secured."

"Repeatedly, the Court has emphasised that the jurisdiction to grant a stay is exercised only in very exceptional circumstances. It is 'extraordinary'."

The approach of the High Court is exemplified by Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681, a case which has been frequently cited and followed. Brennan J noted therein (at 684) that:

"When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the Court below and is to that Court - the Court in which the matter is pending and which is familiar with the matter - that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no inhibition on the Court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court."

Although others have construed these remarks differently, it seems to me, with respect, that his Honour was saying merely that it would be desirable for stay applications to be made, at least initially, to the court below (in which the matter is pending). I do not understand Brennan J thereby to have indicated that the intermediate court should adopt a more lenient approach to the granting of stay applications that previously had been the case. Indeed, in dealing with the principles to be applied, his Honour observed (at 684):

"A stay to preserve the subject matter of litigation pending an appeal for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted."

"In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. 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 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."

Brennan J affirmed these views in Edelsten v Ward (No 2) (1988) 63 ALJR 346, stating:

"The present application is made pursuant to the inherent jurisdiction of this Court to preserve the subject matter of litigation pending the making of an application for special leave to appeal to this Court. That is a jurisdiction which, has been repeatedly pointed out, is an exceptional jurisdiction. It is one which can only be exercised in extraordinary circumstances. It is as well to emphasise that observation again lest the impression be created that, in the conduct of litigation, the orders of this Court are available to keep matters in statu quo until the litigation is finally resolved. That is not the purpose of the inherent jurisdiction. Something quite exceptional must be shown before that jurisdiction is exercised."

See also Grassby v The Queen (1989) 63 ALJR 348 per Mason CJ. In Sali v SPC Ltd (1993) 67 ALJR 515 Brennan J repeated (at 516) that the jurisdiction to grant a stay was dependant upon whether the stay was necessary to preserve the subject matter of the litigation.

In Beljajev v Director of Public Prosecutions [1991] HCA 16; (1991) 65 ALJR 400, Marks J (of the Supreme Court of Victoria) had ordered that the applicant should be committed to prison to await his trial on various counts involving narcotic drugs. The applicant applied for a stay of that order, pending the hearing of his application for special leave to appeal to the High Court. Brennan J (at 401) emphasised the need to identify the subject matter of the litigation in order to determine whether a refusal of a stay order would render futile the proceedings in the High Court. His Honour said (also at 401):

"In the present case, if no order is made, will the applicants right to seek special leave to appeal and, if granted, to appeal, be rendered futile if the appellant remains in custody in consequence of the order made by Marks J? I cannot think that it will. It is imperative that the jurisdiction to grant a stay be recognised as extraordinary and that applications seeking to invoke that jurisdiction are not made simply in order to secure the intervention of this Court in the preservation of a status quo."

Brennan J repeated that the jurisdiction can be exercised only in extraordinary circumstances and said (at 401):

"This must be so, particularly in the case of interlocutory applications in a criminal jurisdiction."

"The jurisdiction of this Court is not fitted to the supervision of interlocutory processes of a criminal trial. It is not therefore necessary for me to consider the strength of the application for special leave which is now pending in this Court. All that is necessary for me to determine is whether the applicant's right to seek special leave to appeal and, if granted, to appeal, would be rendered futile if the appellant remains in custody in consequence of the order made by Marks J."

His Honour considered it that in the circumstances the appropriate order for him to make was simply to refuse the application. A similar approach involving an appeal from a criminal jurisdiction was adopted in Fuller & Cummings v Director of Public Prosecutions (Cth) (1994) 68 ALJR 611. This may be thought to be of particular relevance in quasi-criminal proceedings such as the present.

In Manfal Pty Ltd (In Liq) v Trade Practices Commission (1990) 65 ALJR 256, Toohey J noted (at 257) that:

"Although described in terms of the 'inherent jurisdiction' of the Court (see for example Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681 at 683-684), it may be that in truth what is involved is the scope and extent of the power incidental and necessary to the exercise of the jurisdiction which the Court has in respect of the application for special leave to appeal: see Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 630-631."

In substance, whether the issue is one of jurisdiction or the rules governing the exercise of power pursuant to the jurisdiction, does not appear to be significant as his Honour made clear in the following passage (at 257):

"Whether the question is one of jurisdiction or power, it is clear that the Court will not stay proceedings below, pending the hearing of an application for special leave to appeal, unless satisfied that a stay is required to preserve the subject matter of the litigation (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] at 683) or that refusal of a stay would make it difficult for this Court, in the determination of the appeal, to grant the relief sought: Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1. Although there are other relevant considerations such as the balance of convenience, which were properly the subject of argument by counsel, those considerations are truly peripheral to the central issues."

"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."

In De L v Director General, New South Wales Department of Community Services, Gummow J adopted what had been said by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1].

In Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd [1997] HCA 24; (1997) 71 ALJR 814, McHugh J (at 815) stated:

"The lodging of an appeal in this Court does not stay the enforcement of orders obtained in the courts below. A successful party is presumed to be entitled to the benefits of the judgment obtained ...

The Court in the exercise of its discretion, will not hesitate to stay proceedings when it is necessary to preserve the subject matter or integrity of the litigation. Nor will the Court hesitate to grant a stay where the refusal of a stay could create practical difficulties in terms of the relief which this Court could grant.

However, the applicant for a stay has the burden of persuading the Court that it should be granted. It has been said in this Court that, where special leave to appeal has not yet been obtained, exceptional circumstances must be demonstrated in order to obtain a stay. However the burden on the applicant is less onerous when special leave has been obtained."

The principal order sought in this case was a stay of the enforcement of two costs orders amounting, in total, to over $1,000,000. McHugh J (at 816) noted that:

"[O]ne has to identify what it is that it is necessary to preserve by granting the stay. In the present case, that subject matter is the right of appeal, but that right of appeal does not stand in need of any preservation. Whether or not a stay order is made, the appeal can be heard and determined."

These remarks are of particular relevance in the present case, where the issue is whether the orders requiring the contemnors to pay fines and costs should be stayed.

It is to be noted that McHugh J did not state that the jurisdiction to grant a stay was conditional upon the need to preserve the subject matter of the litigation, but (at 816) recognised (as had Dawson J in Federal Commissioner of Taxation v Myer Emporium Ltd [No 1]), that:

"[It is relevant if] there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed."

Where such a risk exists, a stay may be granted, even if the right of appeal does not stand in need of preservation.

Finally, in Bryant v Commonwealth Bank of Australia Kirby J said (at 308):

"A stay is, by no means, granted simply for the asking. Considerations relevant to the grant of a stay, pending the hearing of an application to this Court for special leave to appeal, will include the applicants satisfying the Court that 'a stay is required to preserve the subject matter of the litigation ... or that refusal of a stay would make it difficult for this Court, in the determination of the appeal, to grant the relief sought'".

The above examination reflects a uniform approach expressed by different Justices in the High Court over a period of several years. In terms thereof, a stay of execution pending an application for special leave to appeal to the High Court will only be granted in "special" or "exceptional" or "extraordinary" circumstances. Generally speaking, the Court will only stay proceedings when it is necessary to preserve the subject matter or integrity of the litigation, or where refusal of a stay could create practical difficulties in the relief available to the High Court, or where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.

In my opinion, the approach of this Court in determining whether to grant a stay of execution pending an application for special leave to appeal to the High Court should be no different. After all, as Dawson J stated in Federal Commissioner of Taxation v Myer Emporium Ltd [No 1], the High Court Rule O70 r12 "is the counterpart of similar rules in other jurisdictions". In particular, it is the counterpart of the rule in this State. Under O70 r12, the High Court has held that the discretion to order a stay of proceedings is only to be exercised where special circumstances exist. In my view, this Court is required to adopt the same approach (and it has done so: see Greenco Pty Ltd v Wilden Pty Ltd, unreported; FCt SCt of WA; Library No 970606; 14 November 1997, where it was accepted by Kennedy and Pidgeon JJ that a stay pending an application for special leave to appeal to the High Court "will only be granted in exceptional circumstances"). In my view, the relevant considerations do not differ depending on whether the application for a stay is made to the High Court or this Court. The approach will be the same irrespective of whether the application is brought under O47 r13(1) or the inherent jurisdiction of this Court.

Counsel for the applicant relied on what might seem to be a more lenient approach by the Court of Appeal of New South Wales as manifest in John Fairfax & Sons Ltd v Kelly [No 2] (1987) 8 NSWLR 510 and Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125. In the latter case Hope and Priestley JJA referred (at 131) to Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] and said:

"The practice that had grown prior to that decision was that, in general, the Court would refuse to grant a stay of its judgment of any length; frequently however it would grant a stay for a short time, within which an application could be made to the High Court. When this happened it usually meant that the applicant would then have to make two applications to the High Court, the first for a stay, and the second for special leave to appeal. We understand Brennan J's remarks to have been directed to encouraging intermediate courts of appeal to feel no inhibitions, in cases where a stay seemed appropriate, against making an order accordingly, until the hearing of the special leave application by the High Court. This would save both the litigant and the High Court the time and expense involved in the disposal of what would be, in such a case, an unnecessary separate hearing of the stay application. The changed practice of this Court has been discussed in John Fairfax & Sons Ltd v Kelly [No 2] (1987) 8 NSWLR 510 and Rudi's Enterprises Pty Ltd v Jay (Court of Appeal, 21 September 1987, unreported); these two cases show some difference of opinion among the Judges on the degree of flexibility permissible under the changed practice, but in a general way indicate the practice clearly enough. Since Jennings Construction the Court has frequently made orders of the kind made in John Fairfax & Sons v Kelly [No 2].

However, the observations of Brennan J in Jennings Construction were not in our opinion directed to the situation where this Court thought no stay should be granted at all."

It is perhaps these remarks that moved Kirby J in Bryant v Commonwealth Bank of Australia to say (at 308) that at least in some jurisdictions of Australia:

"The frequency and normality of appeals have been reflected in the adoption of principles which relax somewhat the stringency of the necessity, previously required, to show 'special' or 'exceptional' circumstances to secure provision of a stay."

It may well be that in New South Wales stay applications may more readily be granted than elsewhere (although it is to be noted that there is, apparently, "some difference of opinion among the Judges"), but that is not the position in this State, nor, as has been pointed out, in the High Court itself.

Counsel for the applicant referred to Craig v Troy, unreported; FCt SCt of WA; Library No 970262; 13 May 1997, where, in the course of reasons delivered extemporaneously, Malcolm CJ (with whom Franklyn J agreed) said:

"There is at present no application for special leave pending before the High Court. Having regard to what was said by Brennan J, as he then was, in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 61 ALJR 102 at 103, and the practice which was developed in the Court of Appeal of New South Wales following that decision, as exemplified in John Fairfax & Sons Ltd v Kelly [No 2] (1987) NSWLR 510 and explained by that Court in Sibuce Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125, it would seem appropriate that a similar approach to an application for a stay of proceedings in a matter where it is intended to make an application for special leave to the High Court should be followed by this Court."

These remarks are capable of suggesting that, in this Court, a more lenient policy towards stay applications pending application for special leave should be followed. It is to be noted, however, that, of the authorities referred to above, only those mentioned in the passage quoted were drawn to the attention of the Court. With respect, it seems to me that a close examination of all the relevant authorities does not warrant a change to the approach adopted by the High Court and followed in Greenco Pty Ltd v Wilden Pty Ltd. I should repeat that, in my respectful view, the intimation given to intermediate courts by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd was merely that, when an application for special leave to appeal is made to the High Court, an application to stay should first be made to the court below "in which the matter is pending and which is familiar with the matter". It was in this context that his Honour said at 684:

"There should be no inhibition on the Court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court."

If I may be permitted to say so, nothing in these remarks appears to require the intermediate court concerned to apply a less stringent test to the grant of the stay than that laid down by the High Court itself.

I turn now to the facts of the present case. At the outset it is to be emphasised that the stay sought is not required to preserve the subject matter or integrity of the litigation. Further, there is no risk that the contemnors will not be able to recover any payments made by them should they be granted special leave and should their appeal be successful. As I have mentioned, the contemnors have not sought to make a case that they are not financially able to pay the fines or that they will be prejudiced in any way should they pay the fines.

Counsel for the applicants submitted that, if "exceptional circumstances" were required to be shown, then the fines imposed were "manifestly excessive" and this, in itself, constituted the requisite exceptional circumstance. I do not propose to canvass the appropriateness of the fines; it is sufficient to state that whether they are excessive is a matter going to the merits of the appeal and it is not in itself an exceptional or special circumstance. It may be that the appeal is arguable both in regard to the amount of the fines and in regard to the findings of guilt. It is unnecessary to express any opinion on the matter. The point is that the mere fact that the appeal may be arguable does not alone justify the grant of a stay.

In Bryant v Commonwealth Bank of Australia, Kirby J said (at 309):

"In the exercise of the jurisdiction to provide a stay, it is often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (eg de-registration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only."

It may well be that cases involving contempt of court also fall into a class "different from cases involving no more than the suspension of the operation of orders affecting two private litigants only". That is because such orders are relevant to the administration of justice, generally, and the public has an interest in the timeous execution of penalties imposed for contempt of court. On the other hand, it may be said that the applicant in an application for an order declaring a party be guilty of contempt of court, and for concomitant penalties, has no financial interest (save for costs) in the execution of consequential orders made. On reflection, however, I do not think that these considerations add any material weight in the present circumstances. In the light of the authorities to which I have referred, it is quite apparent that the preservation of the status quo is not, by itself, an appropriate ground for the granting of a stay. "A stay is, by no means, granted simply for the asking (per Kirby J in Bryant v Commonwealth Bank of Australia at 308). That, however, in essence, is the basis on which the contemnors are seeking a stay.

It is not correct, as was submitted by the contemnors, that it is "normal to grant a stay". The repeated admonition from the various Justices of the High Court who have expressed views on the issue is that a stay is an extraordinary remedy and will only be granted in special circumstances. The fact that an appeal may be arguable, or that a party to the litigation may suffer no prejudice if the stay is granted, or that the application for special leave is made in "good faith", or that expeditious steps have been taken and the special leave application will be heard in the near future, do not, even when taken together, amount to special circumstances. Accordingly I would dismiss the application.

In judgments published on 22 May 1998, this Court found on the motion of the applicant, Hamersley Iron Pty Ltd, that the contemnors were guilty of contempt of court by the publication of five documents in breach of an implied undertaking to the Court, and by conduct having a tendency to interfere with the due course of justice. The first contemnor, Mr Lovell, was fined $40,000 and the second contemnor, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers' Union of Australia, Engineering and Electrical Division, WA Branch, was fined $55,000. The contemnors were ordered to pay Hamersley's costs. They now move for a stay of the fines and of the costs orders pending the making of an application to the High Court for special leave to appeal.

It is well settled that quite apart from the power to grant stays conferred by the Rules of Court this Court has an inherent jurisdiction to stay execution of its judgments and orders pending an appeal: Halsbury's Laws of England (4th ed, 1984) vol 17, p270, para 451; State Bank of Victoria v Parry [1989] WAR 240 at 244.

The High Court also has power to stay the orders of courts below which are, or are to become, the subject of appeals to it. Many cases can be cited in support of that proposition. Some of them are Re Federated Ironworkers' Association; Ex parte Australian Building Constructions Employees and Builders' Labourers Federation (1981) 55 ALJR 395 at 396; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 at 683; Re the Duke Group Ltd (In Liq); Gerah Imports Pty Ltd v The Duke Group Ltd (In Liq) [1994] HCA 3; (1994) 119 ALR 401 per Dawson J at 403.

Since 1986 it has become the almost invariable practice for stay applications pending the grant of special leave to appeal to the High Court to be made to the court in which the matter is pending rather than to the High Court. That became the practice following the statement made by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (supra) to the effect that such applications should be made to the court below in the first instance. He said at p684:

"When an application for special leave to appeal is made to this court, a jurisdiction to stay may be exercised by the court below and it is to that court - the court in which the matter is pending and which is familiar with the matter - that an application to stay should first be made. In this case the Court of Appeal [of the Northern Territory], not wishing to pre-empt the view that may be expressed in this court, tailored its order accordingly. In future, there should be no inhibition on the court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this court."

It is in accordance with this practice that the contemnors' application for a stay of the fines and costs orders is made, and properly made, to this Court.

What then is the approach which this Court should take in deciding whether it is appropriate to grant a stay? In particular, should this Court apply the same principles (in deciding whether to stay its own orders pending special leave applications) as are applied by the High Court in the exercise of its powers to stay the orders of courts below?

The High Court applies a stringent test in considering stay applications made in advance of the grant of special leave. The justices of the High Court have repeatedly said that the jurisdiction to stay proceedings below pending the grant of special leave to appeal is an "extraordinary" jurisdiction, only to be exercised in "exceptional circumstances": Beljajev v Director of Public Prosecutions [1991] HCA 16; (1991) 65 ALJR 400 per Brennan J at 401; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (supra) per Brennan J at 684; Re the Duke Group Ltd (In Liq); Gerah Imports Pty Ltd v The Duke Group Ltd (In Liq) (supra) per Dawson J at 403.

In Beljajev (loc cit) Brennan J said of the High Court's jurisdiction:

"It is imperative that the jurisdiction to grant a stay be recognised as extraordinary and that the applications seeking to invoke that jurisdiction are not made simply in order to secure the intervention of this court in the preservation of a status quo.

In Edelsten v Ward [No 2] (1988) 63 ALJR 346 I said that the jurisdiction can be exercised only in extraordinary cases and added:

'It is as well to emphasise that observation again lest the impression be created that, in the conduct of litigation, the orders of this court are available to keep matters in status quo until the litigation is finally resolved. That is not the purpose of the inherent jurisdiction. Something quite exceptional must be shown before that jurisdiction is exercised.'"

Reference may also be made to Manfal Pty Ltd v Trade Practices Commission (1990) 65 ALJR 256; Jackson v Stirling Investments Ltd [1987] HCA 23; (1987) 162 CLR 612; Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd [1997] HCA 24; (1997) 71 ALJR 814; Re Moore, Ex parte Pillari (1991) 65 ALJR 683 and Federal Commissioner of Taxation v Myer Emporium Ltd [No 1] [1986] HCA 13; (1986) 160 CLR 220, especially at 222-223

In my opinion, these cases show that the High Court's jurisdiction to stay proceedings below will not be exercised unless the circumstances are such that refusal of the stay may render an appeal futile or nugatory, or could make it difficult in the determination of the proceedings in the High Court to grant the relief sought or (to quote Dawson J in Federal Commissioner of Taxation v Myer Emporium Ltd [No 1] loc cit) will give rise to "a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed." It is sometimes put that a stay will not be granted unless the stay is necessary to "preserve the subject-matter": Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd per Brennan J at 683. I think that is nowadays perhaps too narrow a test if the expression "preserve the subject-matter" is understood in a technical sense. It is clear from cases which have been decided since Jennings that stays will be considered even when a stay is not strictly necessary to prevent the total destruction or disappearance of the subject-matter of the litigation. See the remarks of McHugh J in Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd at 816.

As I understand the cases, however, unless a stay is necessary to preserve the subject-matter or integrity of the litigation in the broader sense described above the circumstances will not be regarded as sufficiently exceptional to enliven the discretionary jurisdiction to provide a stay. Only if the applicant can show that a stay is necessary to that end will the High Court go on to consider matters such as whether the application for special leave has a prospect of success, whether a stay will occasion hardship to the respondent, where the balance of convenience lies, and so on. I think such matters are always treated as secondary to the question whether a stay is necessary to preserve the subject-matter or integrity of the litigation. They come into play only if it appears that the refusal of a stay will substantially deprive the applicant of the benefit to be derived from the appeal. Thus, an applicant may fail to obtain a stay even if the applicant can show that unless there is a stay the appeal will be futile.

There is a clear statement to this effect in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (supra) at 685 per Brennan J:

"In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this court's discretion. In each case when the court is satisfied a stay is required to preserve the subject-matter [my emphasis], 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."

I do not understand Dawson J to be saying anything different when he said in Re the Duke Group Ltd (In Liq); Gerah Imports Pty Ltd v The Duke Group Ltd (In Liq) (supra) at 403:

"The inherent jurisdiction of this court to order a stay of proceedings pending the determination of an application for special leave is well-established. It is an extraordinary jurisdiction which will only be exercised in exceptional circumstances.

Exceptional circumstances may arise where the subject-matter of the proposed appeal will be lost without a stay, with the result that the application for special leave and any subsequent appeal will be nugatory. Clearly, in the present case, the subject-matter of the litigation - the immunity of the applicants from examination and from the production of documents concerning the matters in contention - will have disappeared before the application for special leave is heard if the application for a stay is refused. Having regard to the date of the proposed examination, in the absence of a stay the questions will have been asked and answered and the documents produced before the application for special leave is heard.

Notwithstanding these special circumstances, the jurisdiction to grant a stay is discretionary and other matters are relevant to the exercise of the discretion.

Importantly, the applicant must establish a substantial prospect that special leave to appeal will be granted ... in addition there are other matters to be taken into consideration in the exercise of the discretion to grant a stay. The failure if any of the applicant to pursue such avenues as are available in the court below for obtaining a stay is of significance. Any loss which may be caused to interested parties by the granting of a stay must be taken into account. And the balance of convenience is always something to be considered."

In that case, as appears from the passage cited above, even though the subject-matter, that is, the challenge by the applicants to the efficacy of a summons issued under ss596B and 596D of the Corporations Law requiring them to attend and be examined and produced documents was about to "disappear" (because the return date of the summons was three days hence), a stay was refused on a consideration of matters such as the prospects of success, hardship to parties other than the applicant, balance of convenience, etc.

So far as I can see, those cases in which the court has given consideration to matters such as hardship, the balance of convenience, the prospect that special leave to appeal may be granted and so on are all cases in which the first hurdle has been cleared by the applicant. They are cases in which, speaking broadly, an appeal would be futile unless a stay was granted. I would include in this category of cases Moullex Pty Ltd v Girvan NSW Pty Ltd (Receiver and Manager Appointed) (1991) 13 Leg Rep 24; De L v Director General, New South Wales Department of Community Services & Anor [1996] HCA 9; (1997) 136 ALR 201; Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306.

Now, it simply cannot be said that there is anything in these proceedings which is in need of preservation. The contemnors have been fined for contempt and ordered to pay costs. No subject-matter will disappear or be destroyed should a stay be refused. There is nothing to suggest that the contemnors cannot be fully restored to the position they were in prior to enforcement of the orders made against them should they obtain special leave to appeal and succeed in the appeal. The fines will be paid into consolidated revenue and there is not the slightest suggestion that should the appeals succeed, the fines will not be repaid. It is true that the costs which are taxed are to be paid to the company, Hamersley Iron Pty Ltd. There is nothing to suggest that should the costs order be reversed on appeal, those costs will not be recoverable from that company. Furthermore, we are informed and must accept that no bill of costs has yet been presented. It is unrealistic to think that costs will be taxed and enforcement proceedings taken in respect to costs before an application for special leave can be heard and disposed of. Should the contemnors succeed in obtaining special leave to appeal, a fresh application for stay orders may be made either to this Court or to the High Court at the appropriate time. The considerations which apply to the grant of a stay where special leave to appeal has been obtained are much less stringent: Smith v NSW Bar Association [1991] HCA 59; (1991) 66 ALJR 219 at 220.

Therefore, if the tests that would be applied by the High Court to the question whether a stay should be granted in this case were to be applied by this Court, the stay must be refused.

In my opinion, there should be a general conformity between the approach taken by this Court in the exercise of its jurisdiction to stay pending applications for special leave to appeal and the approach that would be taken by the High Court to the same application. As Kirby P said in Director of Public Prosecutions v Saffron (No 2), unreported; SCt of NSW; Court of Appeal; 30 May 1989:

"Clearly, it would be undesirable for this Court ... to prove more willing to provide protection of the subject-matter of litigation than is the High Court of Australia itself."

The stringent approach of the High Court to the grant of a stay pending the hearing of a special leave application has been applied in the Supreme Court of South Australia and in the Federal Court. In KMP Coastal Oil Pte Ltd v The Owners of Motor Vessel "Iran Amat" & Ors; unreported; Federal Court; Library No 9703198; 18 July 1997, Emmett J heard an application for a stay of a Full Court order remitting an admiralty claim for hearing in circumstances where the defendant disputed the jurisdiction of the court to determine the claim. The basis for the application for the stay of that order was that if the matter was remitted, the defendant might be placed in the position where it would be required to comply with directions given by the court or, in the conduct of the proceedings, might be advised to make an application itself, thereby invoking the court's jurisdiction. It did not wish to be placed in that position pending an appeal to the High Court on the issue of jurisdiction as it would then be pointless for the High Court to determine the question of jurisdiction. In granting the stay, Emmett J said:

"The jurisdiction to grant a stay depends on whether a stay is necessary to preserve the subject-matter of the litigation. The stay is an extraordinary jurisdiction and exceptional circumstances must be shown. For the reasons which I have indicated, I consider there is at least an argument, although I do not know that it is a strong one, that there may be a destruction of the subject-matter of the litigation by reason of the defendant either complying with directions or itself being advised to move the court. I am satisfied that exceptional circumstances exist because of the risk for the defendant of losing the subject-matter of the proposed appeal to the High Court, namely the possibility of a determination that there is no jurisdiction of this court."

Only then did his Honour go on to consider whether there were other considerations that would stand in the way of the grant of a stay and decided there were not and he granted a stay on terms. He thought there was a "sufficient prospect" that special leave would be granted and that the balance of convenience favoured the applicant. It is plain, I think, that Emmett J applied exactly the same test as the High Court applies in considering whether to provide a stay pending the hearing of a special leave application. In particular, it is plain that he would not have proceeded to examine matters such as the applicant's prospects of success in the special leave application or the balance of convenience unless he had been persuaded that if a stay was refused the applicant might lose the benefit to be derived from the appeal.

In Southern Equities Corporation Ltd (In Liq); Bond & Anor v England; unreported; SCt of SA; Library No 9706122; 19 November 1997 Lander J also exactly applied what may be termed the High Court test. His Honour expressly applied the test as it was enunciated in Jennings (supra) and Re the Duke Group Ltd (supra) to deny a stay application notwithstanding that unless the stay which was sought was granted the subject-matter of the litigation would be destroyed and the application for special leave to appeal would be rendered nugatory. His Honour clearly proceeded on the basis that those circumstances were necessary to the grant of a stay but that they were not necessarily sufficient.

It would be fair to say that the Supreme Court of New South Wales has had a rather different practice. Hitherto, at any rate prior to Director of Public Prosecutions v Saffron (No 2) (supra), and another unreported decision which I will mention, the approach of the Supreme Court of New South Wales has been that there is no requirement upon the applicant to show exceptional circumstances, in stay applications pending special leave applications. See the discussion of the topic in Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125 per Kirby P at 127. We are told in that case that prior to Jennings it was the practice of the Supreme Court of New South Wales to require stay applications pending the grant of special leave to be made to a justice of the High Court. This the Supreme Court would do by refusing to grant stays itself except in the most pressing cases, when a short stay might be granted to enable the matter to be brought before a High Court Justice. In response to the statement of Brennan J in Jennings the Court of Appeal in John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510, formulated a new practice to the effect that thenceforth it would not insist that any stay should be granted by a justice of the High Court. Instead the Court "would normally grant a stay of 21 days ... to permit an application to be made for special leave to appeal ... " There was no requirement to show exceptional circumstances. A stay would be granted provided only that the special leave application was made bona fide and was not "hopeless or misconceived" (p 512).

So far as I have been able to discover there is no reported case in which the Supreme Court of New South Wales has reviewed the practice laid down in John Fairfax & Sons v Kelly but there are at least two unreported decisions of the Court of Appeal in which some uneasiness has been expressed about the disconformity between the guidelines laid down by the Court of Appeal in John Fairfax & Sons v Kelly (No 2) and the approach of the High Court. I have already referred to Director of Public Prosecutions v Saffron (No 2) in which the Court of Appeal acknowledged that it would be undesirable for it to be more willing than the High Court to grant stays pending special leave applications. In an earlier case, Halabi v Westpac Banking Corporation (No 2), unreported; SCt of NSW; Court of Appeal; 8 February 1989, Kirby P, in referring to a contention on the part of counsel opposing a stay to the effect that the guidelines laid down in John Fairfax & Sons Ltd v Kelly (No 2) were more generous than was the practice of the High Court, said:

"... it may be that the principle in Kelly (No 2) will need some further refinement if it is shown that that there is indeed a disharmony between the approaches to stay applications in the High Court and in this Court."

In my respectful opinion there is a disharmony between the principles that are consistently applied by the High Court in considering stay applications pending applications for special leave to appeal and those which are laid down in the New South Wales cases such as John Fairfax & Sons v Kelly (No 2). Because of that and because of the fact that the Court of Appeal has itself expressed the view that any such disharmony is at least "undesirable" I think this Court can, without any disrespect to the Supreme Court of New South Wales, accord somewhat less weight to the approach which it takes to stay applications than would otherwise be the case.

What of the position hitherto in Western Australia? On behalf of the contemnors, Mr Courtis submitted that it is the usual practice of this Court to provide stay orders where there is an indication that the unsuccessful party in proceedings in the Full Court intends to make application for special leave to appeal to the High Court. He referred us to Craig & Ors v Troy & Ors; unreported; SCt of WA; Library No 970262; 13 May 1997. It is true that the Full Court in that case (constituted by Malcolm CJ and Franklyn J), seemed to take the approach that there should be a stay pending the making of an application for special leave to appeal to the High Court if the application for special leave is made in good faith and is one which "is at least arguable". In so deciding the Court expressed the opinion that it was appropriate to follow what Malcolm CJ described as "...the practice which was developed in the Court of Appeal of New South Wales ..." It is to be noted that the decision in Craig v Troy was given extempore and very few authorities seem to have been drawn to the court's attention. No reference appears to have been made to cases such as Beljavev v Director of Public Prosecution (supra), Federal Commissioner of Taxation v Myer Emporium (supra), Manfel Pty Ltd v Trade Practices Commission(supra), Re Moore; Ex parte Pillari (supra), Re the Duke Group Ltd (In Liq); Gerah Imports Pty Ltd (supra) or Sali v SPC Ltd (1993) 67 ALJR 515 in which the principles laid down by the High Court in Jennings (to which the Full Court did refer) are so firmly repeated. Neither does it seem that the attention of the Full Court was drawn to the inconsistency of approach as between the Court of Appeal of New South Wales and the High Court, nor was the Full Court invited to consider whether in light of that inconsistency it is more appropriate that this Court follow the High Court. Furthermore, there are two decisions of this Court which precede Craig v Troy, to which the Full Court in Craig v Troy was not referred. In Franich & Anor v Swannell & Ors, unreported; SCt of WA; Library No 940025; 28 January 1994, the applicants applied for a stay of proceeding pending the making of an application for special leave to appeal to the High Court from a judgment of the Full Court pursuant to which they were obliged to pay to the respondents the sum of approximately $170,000 and costs. The application for the stay came before Murray J, who had been one of the members of the Full Court. Murray J examined a number of the decisions of the High Court to which I have referred above, including Federal Commissioner of Taxation v Myer Emporium Ltd (supra) and Jennings (supra) and he said:

"To grant a stay of execution should be regarded as an exceptional and extraordinary power. ... the court will consider the grant of a stay if the applicant establishes that without it, his or her appeal will be rendered nugatory because the subject-matter of the litigation will be lost. In the case of the award of a sum of money I expect that will only be the proper conclusion if it is established that in the hands of the party successful below, pending the determination of the appeal, the amount of the judgment, or some substantial portion of it, will be irretrievably lost. If such is established to be the case, the court may still not grant the stay. It will go on to consider the hardship or loss which may occasioned to the respondent if the stay is granted. If such is established, it will be necessary for the court to consider how the matter may be most fairly resolved having regard to the balance of convenience, which phrase I take to encompass the same sort of considerations as will arise upon the court's consideration of the grant of an interlocutory injunction".

His Honour concluded that there was insufficient evidence that should the money be paid over to the respondent in compliance with the judgment, it would be irretrievably lost in the event that special leave was granted and the appeal was successful. He, therefore, refused the stay without going on to decide questions such as the prospects of success in the special leave application, the balance of convenience and so on.

In Greenco Pty Ltd v Wilden Pty Ltd, unreported; FCt SCt of WA; Library No 970606; 14 November 1997, the Full Court, constituted by Kennedy and Pidgeon JJ, heard an application for a stay of execution of its judgment in which it had set aside a stay of execution on a judgment obtained in the District Court. The stay application was made, in part, on the ground that the applicant intended to lodge an application for special leave to appeal to the High Court. It was a case in which there was evidence that if the applicant paid out the District Court judgment, it would not be able to recover the payment in the event of a successful appeal. The Full Court, nevertheless, refused the stay and in doing so clearly applied the principles enunciated in Jennings. Implicit in the reasoning of Kennedy J, with whom Pidgeon J agreed, was the proposition that it was not enough merely to show a risk that the appeal may be rendered nugatory by refusal of a stay. His Honour clearly proceeded on the basis laid down in Jennings that a stay will only be granted in exceptional circumstances. As the applicant had failed to persuade the court that there was "a substantial prospect that special leave to appeal to the High Court would be granted" (Kennedy J at p8), the application was refused, notwithstanding the risk that an appeal might be rendered futile by that refusal.

As I have said, these cases were not drawn to the attention of the court in Craig v Troy. If the judgment in Craig v Troy is understood as deciding that a stay ought to be granted provided only that the applicant is bona fide and can demonstrate an arguable case for the grant of special leave, the decision would seem to run counter to the main body of current authority on this subject, including cases decided in this Court. However, whether or not Craig v Troy should simply be regarded as having been decided per incuriam and that it is therefore a case which is not to be followed is not something which we have to decide. I think the case is clearly distinguishable from the present case. It was a case in which the applicants had been ordered to pay a very substantial sum of money to the respondents whose financial circumstances were such that there was a real risk that the money would be irretrievably lost to the applicants in the event that their appeal succeeded. That is not this case.

In my opinion, it has not been established by the applicants that a stay is necessary to preserve the subject-matter or integrity of the litigation or to protect the jurisdiction of the High Court to grant appropriate relief should special leave be granted and the appeal succeed.

I would dismiss the application for a stay of proceedings.

Court Rules 1953(Cth)

Hamersley Iron Pty Ltd & Ors v Avon Francis Lovell & Ors [1998] WASCA 304

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Judgment (121 paragraphs)

Hamersley Iron Pty Ltd & Ors v Avon Francis Lovell & Ors [1998] WASCA 304 (29 October 1998)

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Cases Cited (23)