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A Stay of Proceedings

5. The starting point is r 5301 of the Court Procedures Rules 2006 (ACT): 5301 Appeals to Court of Appeal—stay and reinstatement (1) An appeal to the Court of Appeal in a civil proceeding does not operate as a stay of the order appealed from unless— (a) a territory law provides otherwise; or Note A territory law includes these rules (see Legislation Act, s 98). (b) the Court of Appeal or the court otherwise orders. Note 1 Pt 6.2 (Applications in proceedings) applies to an application for a stay or for an order under this rule. Note 2 An appeal to the Court of Appeal in a criminal proceeding does not operate as a stay of the conviction appealed from. (2) In an urgent case, an application to the Court of Appeal or the court for a stay may be made without serving it on anyone. (3) If the application to the Court of Appeal or the court for a stay is made without serving it on anyone, the application must be accompanied by an affidavit setting out the grounds relied on in support of the claim of urgency. (4) If the order appealed from is stayed by the Court of Appeal or the court, the Court of Appeal or the court may make any order that it considers necessary or desirable to give effect to the stay. (5) The Court of Appeal may, by order, amend or set aside an order made by the court or it under this rule. (6) The court may, by order, amend or set aside an order made by it under this rule. (7) An application for an order of the Court of Appeal for a stay may be made whether or not a similar application has been made to the court. (8) If any step has been taken for the enforcement of an order and the Court of Appeal amends or sets aside the order on appeal under this part, the Court of Appeal may make the orders for reinstatement it considers appropriate. The precepts governing grant of a stay

6. In considering the grant of a stay pending an appeal in Alexander v Cambridge Credit Corporation (Receivers Appointed) (1985) 2 NSWLR 685; 10 ACLR 42 the court observed at 694: In our opinion it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour. There are other principles to be kept in mind. The onus is upon the applicant to remonstrate a proper basis for a stay that will be fair to all parties: Trlin. The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: see Supreme Court Rules, Pt 51, r 10; Waller v Todorovic. The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it: Attorney- General v Emerson (1889) 24 QBD 56.

7. More recently in Collier v Country Women's Association of New South Wales [2017] NSWCA 303, Gleeson JA observed at [32]: It is not necessary to refer to those principles in any detail other than to note that in such cases, the successful party is prima facie entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal, and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds; or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381 at 385 [15]. It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [2]. Are there arguable grounds of appeal?

8. The question to be addressed is whether there are reasonably arguable grounds. The court is not called upon to address in any substance the appellant’s prospects of success. The Territory describes this aspect of the test as a low bar. They assert it is sufficient if the appeal proceedings raise real issues for determination. That is certainly the case where the appeal is one brought from a decision involving the final determination of the rights of parties in a case. But in the case of an appeal from an interlocutory decision the bar governing the grant of leave to appeal is itself set at a much higher level. Leave will only be granted sparingly with a view to avoiding delay and fragmentation of hearings. Particular hesitancy will arise in the context of an appeal concerning practice and procedure.

9. Where a stay is sought pending an appeal from an interlocutory decision the bar shifts somewhat. That is because the circumstances in which leave to appeal will be granted are more restricted. Having regard to the limited bases upon which leave to appeal from an interlocutory decision will be given it seems to me that the issue of prejudice if the stay is not granted takes on greater significance. It is then relevant for the court to consider whether the absence of a stay is likely to result in some unfairness affecting the outcome of the proceedings.

Is there a real risk of prejudice to the Territory if the stay is not granted?

10. The Territory argues the continuation of the usual court processes may compromise the continued application of Ch 5 of the CLW Act in this case. It relies upon the decision of the Court of Appeal in Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 in support of its proposition that the pre- and post-court processes are divided. The Territory argues essentially that if a stay is not granted it will be forced to engage in the usual case management processes applying once a trial has commenced. In that sense it would be forced to take actions inconsistent with its position that the proceedings are stayed as a consequence of the plaintiff’s non-compliance with the pre-court requirements. There is some force in that argument. As the court observed in Cleary at [50], in relation to disclosure obligations in the pre-court phase: …The obligations in ss 64 and 68 are plainly intended to operate before any proceedings are instituted. Of course, that does not necessarily mean that there is not also an ancillary purpose of ensuring that if claims cannot be settled before any proceedings are begun, they should be settled as soon as possible thereafter, and that the disclosure provisions are designed in part to bring that about.

11. The obligations in the pre- and post-court phases are distinct, although the object of promoting early resolution which sits behind the pre-court disclosure obligations does not end with the commencement of proceedings. The power of the court to grant leave to commence proceedings, notwithstanding a non-compliance with some aspect of the pre-court phase, necessarily results in an uneasy dichotomy between the pre- and post-court obligations. The existence of that dichotomy does not alter the reality that once proceedings are commenced, absent a stay, there is available to each of the parties a range of procedures to further the progress of the matter that are plainly intended to operate as if the pre-court obligations had ceased to operate. Any prejudice suffered by the party asserting an entitlement to further disclosure pursuant to pre-court obligations must be assessed in the context that there is now another avenue of disclosure available to them.

12. The particular prejudices relied upon in this case are: (a) the Territory would be deprived of a meaningful opportunity to attempt to resolve the matter prior to incurring costs of engaging with the formal court processes; (b) in the decision under appeal there was acknowledgement that some of the Territory’s requests for information were reasonable. If the appeal is successful, information obtained from the plaintiff will likely assist in defining the issues in dispute and narrow the issues of contention between the parties. If a stay is not granted the “pre-court” opportunity to narrow the issues will be lost; and (c) if a stay is not granted the same information will likely be sought by the Territory through the courts usual processes such as an application for better particulars, prospectively leading to the unsatisfactory outcome of parallel disputes about the same information in different contexts.

13. As to the first point, the Territory has not identified how its costs will be increased by undertaking the relevant engagement through the court processes as opposed to the pre-court processes. There is nothing to prevent the Territory from utilising the court processes to seek the information they consider relevant, now with the benefit of an understanding of the plaintiff’s pleaded claim. There is also no bar to entering into discussions with a view to resolution of the matter at the earliest convenient time.

14. In relation to the second point, I accept the opportunity to utilise pre-court processes to secure the additional information is prospectively lost, but it is replaced by the opportunity to use the court processes to secure that information, with the benefit that the Territory is now availed of the claim made against it in a formal pleading as opposed to a simple claim form. As a consequence, I am not satisfied a prejudice arises from the prospective loss of one process for securing information that is in effect replaced by the availability of another process for securing information with the benefit of a narrowed scope provided by a pleaded claim.

15. The third asserted prejudice only arises where steps are taken to pursue the same disclosure utilising pre- and post-court obligations. Clearly parallel disputes of that nature were not envisaged by the legislature and should not be accommodated. They do not arise in these circumstances. Unless the appeal is determined favourably for the Territory, there is presently no scope for them to further pursue the satisfaction of obligations arising under the pre-court procedures. In the event of a successful appeal some ancillary orders may be required. In the interim the prospect of parallel disputes does not arise.

Where does the balance of convenience lie?

16. The ultimate argument made by the Territory, is the appeal may be rendered nugatory, in whole or in part, if a stay is not granted. I do not accept that it may be rendered nugatory in whole. As the Territory contends, the appeal in part addresses the issue of the divide between pre-court processes and the usual court procedures that has not previously been considered by the Court of Appeal. To that extent the value of the appeal is not lost where a stay is refused.

17. I accept the appeal may be rendered nugatory in part, to the extent that the Territory may, by other means available to them in the post-court phase, gain access to the additional information they seek, rendering pursuit of the appeal to that extent unnecessary. In addressing the balance of convenience, it is necessary to weigh that potential prejudice against the main negative flowing from a stay which is delay. Accepting a November hearing of the appeal, there can be no assurance as to the timeframe for the delivery of judgment. In the meantime, a stay will ensure there is no further progress in the matter. A stay will have the effect of frustrating the clear purpose of the civil procedure provisions as articulated in s 5A of the Court Procedures Act 2004 (ACT) to facilitate the just resolution of disputes “according to law; and as quickly, inexpensively and efficiently as possible”.

18. Accepting some inevitable prejudice suffered by the Territory as a consequence of the refusal of its application, I am satisfied the balance of convenience lies against the granting of a stay. Orders

19. I make the following orders: (1) The application in proceeding lodged on 6 July 2026 is dismissed. (2) The second defendant is to pay the plaintiff’s costs of and incidental to the application.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 4 September 2026