LEE -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 97 (16 June 2023)

1. The Application is listed for hearing on 31 May 2023 at 2.15 pm.
2. The time for the registrar to give notice of the hearing pursuant to r 12 of the Supreme Court (Court of Appeal) Rules 2005 (WA) is abridged.
3. Mr Lee did not comply with par 1 or par 2 of the court's orders made 29 May 2023.
4. On 29 May 2023 Mr Lee sought orders in the primary court to adjourn the hearing of 1 June 2023. The primary judge dismissed that application on the morning of 31 May 2023.[3] The primary judge ordered that the question as to the operation of s 60 of the Bankruptcy Act on the primary proceedings be heard and determined on the papers; and the hearing listed for 1 June 2023 be vacated.
5. Accordingly, Mr Lee's application in the appeal for a stay of the hearing of 1 June 2023 is to be understood as an application for an order that the primary judge defer his Honour's determination of the Bankruptcy Act question on the papers until Mr Lee's appeal against the orders made on 24 May 2023 is determined.
6. Mr Lee failed to attend the hearing listed before the Court of Appeal on 31 May 2023. When Mr Lee did not appear the court contacted him by telephone. Mr Lee sought and obtained an adjournment of the application in an appeal dated 28 May 2023. Mr Lee was given liberty to apply to relist the application. Mr Lee then sought the relisting after he filed an appellant's case on 5 June 2023.
7. The appeal hearing on 16 June 2023 was the hearing scheduled in response to Mr Lee's request for a relisting of the application in an appeal dated 28 May 2023.

1. By his application in an appeal dated 28 May 2023 Mr Lee sought a stay of the hearing listed for 1 June 2023 in the primary proceedings until the determination of his appeal against the orders made by the primary judge on 24 May 2023. This, as we have said, is to be treated as an application for an order that the primary judge defer determining the question as to the operation of s 60 of the Bankruptcy Act until after Mr Lee's appeal against the order made on 24 May 2023 is determined. Thus, in substance, Mr Lee sought that this court intervene in the primary proceedings by providing for an interim stay of the primary proceedings pending determination of his appeal against the orders made 24 May 2023.
2. In support of his application for a stay Mr Lee said that he considered that the SSO should not continue to act for the State and his application dated 23 May 2023 [sic - meaning 13 April 2023] should be heard prior to the determination of the Bankruptcy Act point.
3. Whether there are special circumstances justifying a stay of the judgment or order of a primary court normally involves assessment of three things:
   1. Is the stay necessary to preserve the subject matter or the integrity of the litigation?
   2. Does the appeal have reasonable prospects of success?
   3. Does the balance of convenience favour the grant of the stay?
4. However, this is an interlocutory appeal in relation to a matter of practice or procedure where, in effect, the appellant wishes to obtain a stay of the underlying primary proceedings in support of that challenge.
5. This court recognises the need to exercise special restraint when considering challenges to interlocutory orders concerning practice and procedure. Moreover, it is recognised that where, in aid of such an appeal, an appellant seeks a stay of pending proceedings - as in effect is sought by the current application for a stay - the order sought involves the exercise of an 'exceptional jurisdiction'. An applicant has to demonstrate a 'high threshold' in making out a special case to warrant such appellate interference.[4]
6. In Nikolaidis v Legal Services Commissioner Bryson JA stated in the context of an application to stay ongoing proceedings in the Administrative Decisions Tribunal of New South Wales:

Judicial decisions relating to the enforcement of judgments which are under appeal cannot be readily applied to an interlocutory stay of proceedings, but in principle the inherent power of the court [to grant such a stay of proceedings] extends to appeals in interlocutory proceedings. The power exists because it is necessary for the administration of justice, and it is to be exercised where it is necessary to exercise it. The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy, or otherwise so adversely severe in its impact, that intervention by the Court of Appeal should take place notwithstanding that there has not been an opportunity for full consideration.[5] (emphasis added)

1. On the issue of such appellate intervention, Bryson JA stated that the question for consideration was a 'test of necessity' not simply a balance of convenience.[6]
2. The present circumstances fall far short of satisfying such a test of necessity where the likely outcome absent the stay sought by Mr Lee is 'so adverse and severe' that the attainment of justice requires this court's interlocutory intervention in the ongoing conduct of the primary proceedings.
3. Mr Lee has not established a likelihood that the primary judge's refusal to urgently determine the application (made in Mr Lee's chamber summons dated 13 April 2023) to restrain the SSO from acting for the State in the primary proceedings will render the determination of the Bankruptcy Act point procedurally unfair or unjust. There has been no attempt to demonstrate that the integrity of the hearing previously scheduled for 1 June 2023 - or the determination now to be made on the papers - will be impaired or adversely affected in any way by the non-determination of the application to restrain the SSO from acting before the determination.
4. In this respect it should be observed that the determination will turn on the application of s 60 of the Bankruptcy Act to an action of the kind pursued by Mr Lee in the primary proceedings. The issue will be one of legal characterisation having regard to the claim made and the facts and circumstances relied on by Mr Lee in the context of uncontentious undisputed facts as to Mr Lee's bankruptcy and past decisions of the court involving Mr Lee. Even if there is a basis to restrain the SSO from acting in the primary proceedings, as to which we say nothing, given the nature of the determination to be made by the primary judge there is, in our view, no likelihood that the involvement of a solicitor from the SSO acting as counsel for the State in relation to the proposed determination will result in the determination of the Bankruptcy Act point going off the rails in a manner that is so adverse and severe that the attainment of justice requires interlocutory appellate intervention of the exceptional kind sought by Mr Lee.
5. Nor has Mr Lee established that the primary judge's refusal to urgently determine the application for discovery (made in the chamber summons dated 13 April 2023) will render the determination of the Bankruptcy Act point procedurally unfair or unjust. That application presumes the outcome of the primary proceedings, as the appellant conceded in oral submissions. The appellant did not demonstrate that the determination of the Bankruptcy Act point would be impaired or adversely affected in any way by the non-determination of the application for discovery.
6. In any event, in the unlikely scenario that the primary judge's refusal to deal urgently with the application dated 13 April 2023 does affect the final result of the forthcoming determination as to whether Mr Lee may continue the primary proceedings in his own name pursuant to s 60(4) of the Bankruptcy Act, the matter may be addressed by an appeal against the order made by the primary judge in determining that question.[7] The availability of appellate relief against the final outcome provided a further discretionary reason to decline to intervene on the current interlocutory basis as sought by Mr Lee.
7. For these reasons we ordered that Mr Lee's application in an appeal dated 28 May 2023 for a stay is dismissed.

1. The principles that apply on an application for leave to appeal in respect of an interlocutory order are well established. For present purposes it is sufficient to adopt, without repeating, what was said by this court in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[8]
2. In summary, where leave to appeal is necessary, leave may be granted whenever the interests of justice require the grant of such leave. Ordinarily, while not being rigid or exhaustive criteria, two main considerations are taken into account. First, whether the decision is wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered. Second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong. The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected. Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.
3. In his appellant's case Mr Lee relies on the following single ground of appeal:

His Honour erred in law by exercising his discretion to only consider the Plaintiff's chamber summons dated 13 April 2023 after the substantive hearing of the Plaintiff's application for leave to proceed pursuant to section 60(4) of the Bankruptcy Act.

1. The challenge by this ground cannot sustain a grant of leave to appeal.
2. First, the ground asserts error without describing how the primary judge is alleged to have erred in law. In this respect the ground is manifestly deficient. The primary judge was exercising a discretion. An appeal against the orders of 24 May 2023 must allege discretionary error consistently with the principles in House v The King.[9] No such error is alleged in Mr Lee's single ground of appeal. An appeal based on the ground as presently formulated does not have a reasonable prospect of succeeding.
3. We acknowledge that, in his written and oral submissions, Mr Lee refers to House v The King and then asserts that it would be 'unjust' for the primary court to proceed to decide the Bankruptcy Act point without considering the application by the chamber summons dated 13 April 2023. There are two reasons this is insufficient: (1) this court deals with grounds rather than submissions - it is necessary for Mr Lee to articulate an arguable ground of appeal in his grounds rather than in submissions; and (2) in any case, inferred error cannot be established by the mere assertion that a decision at first instance is 'unjust'. House v The King requires that the decision be so 'unreasonable or plainly unjust' that the court may infer that a substantial wrong has occurred such that, in some way, there has been a failure properly to exercise the discretion. That is not this case. It was, in our view, well open to the primary judge to conclude that the Bankruptcy Act point should naturally be first addressed in the primary proceedings. If the point taken by the State is good then the primary proceedings will be stayed or dismissed. There will be no necessity to consider the application to restrain the SSO from acting in the primary proceedings. If the point is bad then - and only then - will it be necessary to consider whether the SSO should be restrained from acting in the primary proceedings.
4. Second, the primary judge's orders of 24 May 2023 concerned matters of practice and procedure - the primary judge was essentially determining the order in which he would consider and determine various interlocutory applications. At the most Mr Lee's complaint is one of possible procedural disadvantage insofar as his application by chamber summons dated 13 April 2023 is not to be determined before the Bankruptcy Act question is determined.
5. Third, a case management issue of this kind ought not to be the subject of appellate interference unless, exceptionally, the court is persuaded that substantial injustice will ensue because there will be some interference with a litigant's substantive rights. Mr Lee did not point to anything that might satisfy this criteria. Nor can we identify anything that might do so. To the contrary, for the reasons we have given in dismissing Mr Lee's application in an appeal for a stay, we are satisfied that no substantial injustice will ensue as a result of the orders of the primary judge made 24 May 2023; and, moreover, that if - contrary to our expectation - there is something in the sequencing that affects the final result, that may be the subject of an appeal against the primary judge's decision in determining the question as to s 60 of the Bankruptcy Act.
6. For these reasons we ordered that Mr Lee's application for leave to appeal against Lundberg J's orders made 24 May 2023 is dismissed. It followed that the appeal was to be dismissed.

1. The costs of the application in an appeal dated 28 May 2023 followed the event. So too did the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lee v The State of Western Australia [2023] WASC 182, fn 7.

[2] Lee v The State of Western Australia [6].

[3] Lee v The State of Western Australia.

[4] Thomson v Young [2013] NSWCA 300 [13] (approved in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [52]).

[5] Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 [18] (approved in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [53] - [55]).

[6] Nikolaidis v Legal Services Commissioner [20].

[7] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 [4] ‑ [7].

[8] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] - [118].

[9] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.